Madhya Pradesh High Court
Manoj Malviya vs The State Of Madhya Pradesh on 27 May, 2021
Author: Subodh Abhyankar
Bench: Subodh Abhyankar
1 M.Cr.C.No.22391 -2021
THE HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
M.Cr.C.No. 22391 -2021
( Manoj Malviya s/o Kailash Malviya vs. State of Madhya Pradesh)
Indore, Dated: 27/05/2021
Heard through video conferencing.
Shri K.K. Manan, learned senior counsel with Shri Prateek
Maheshwari, learned counsel for the applicant.
Shri Amit Singh Sisodiya, learned Panel Lawyer for the
respondent /State.
They are heard. Perused the case diary / challan papers.
1. This is the applicant's fourth application under Section 439 of Criminal Procedure Code,1973, as he / she is implicated in connection with Crime No.266/2020 registered at Police Station-Mhow, District- Indore (MP) for offence punishable under Sections 420, 467, 468, 471, 120-B of the IPC, under Section 3 / 4 of Gambling Act, under Sections 66-C & 66-D of the I.T. Act, 2000. The applicant is in custody since 11.10.2020.
2. Applicant's first bail application M.Cr.C.No.44133/2020 was dismissed by this Court vide order dated 11.11.2020 on merits. The second bail application M.Cr.C. No.48438/2020 also met the same fate vide order dated 21.12.2020 as the application was dismissed on merits, however, the third bail application M.Cr.C.No.7750/2021 was dismissed by this Court vide order dated 5.4.2021 stating that the applicant has not a averred as to what are the changed circumstances in 2 M.Cr.C.No.22391 -2021 filing the third bail application, this court also observe that the counsel for the applicant has also argued the matter as if it were a fresh application for bail.
3. The allegation against the present applicant is that he being a software engineer, prepared a software on the order of the main accused Raju Verma which was used in the gambling activity.
4. Shri K.K. Manan, learned senior counsel appearing with Shri Prateek Maheshwari, Advocate for the petitioner has submitted that the complete charge sheet in the present case was not filed at the time of dismissal of the earlier two bail applications, which has also been observed by this Court in the respective orders passed in the bail applications. Senior counsel has further submitted that now finally the complete charge sheet has been filed on 5.3.2021 and no recovery of any incriminating material from the computer of the applicant or any data of web site or game has been seized or placed on record in the final investigation report. It is further submitted that the applicant is a Software Engineer by profession and he is in jail since last around 8 months i.e since 11.10.2020 and there is no other case registered against him. It is further submitted that the prosecution has cited as many as 95 witnesses in the charge sheet and the final conclusion of the trial is likely to take sufficiently long time on account of Covid-19. Hence, it is submitted that the bail application be allowed. 3 M.Cr.C.No.22391 -2021
5. Shri Amit Singh Sisodiya, learned counsel appearing for the respondent / State has opposed the prayer and it is submitted that no new grounds for reviewing the earlier two orders are made out by the applicant. It is further submitted that, it is apparent from the order of dismissal passed by this Court in the second bail application M.Cr.C.No.48438/2020 dated 21.12.2020 that the charge sheet had already been filed even at the time when the applicant's second bail application was dismissed and thus the contention of the learned senior counsel for the applicant that the complete charge sheet has not been filed is not tenable. Counsel has further submitted that the recovery of a huge sum of money i.e. Rs.39,50,000/- has also been made from the applicant's possession and as such no case for grant of bail is made out.
6. Shri Manan, learned senior counsel, in rebuttal, has submitted that the first challan was filed on 03.12.2020 that is prior to the decision of the second bail application M.Cr.C.No.48438/2020 dated 21.12.2020, whereas even the State's stand before this Court in the second bail application was that the complete charge sheet has not yet been filed and the investigation is still open. Senior counsel has further submitted that the complete charge sheet was filed only on 5.3.2021 that is after a period of 146 days from the date of arrest of the applicant. In such circumstances, it is submitted that the applicant is entitled to be released on default bail only as provided under Section 4 M.Cr.C.No.22391 -2021 167(2) of the Cr.P.C. Senior counsel has also relied upon the decision rendered upon by this Court M.Cr.C. No. 15570 /2021 dated 23.4.2021, wherein this Court has held that, if the charge sheet has not been filed within the prescribed period of 60 or 90 days as the case may be, in that case, even if no application under Section 167(2) of the Cr.P.C. has been filed before the trial court the applicant is entitled to be released on bail.
7. Heard the learned counsel for the parties and perused the record.
8. On perusal of the record, it is found that so far as the applicant's second bail application M.Cr.C.No. 48438/2020 is concerned, this Court, in its order dated 21.12.2020 has held as under:-
"6. It is further submitted that though the charge sheet has been filed due to compulsion of the time limit prescribed by the law but the investigation with regard to the data stored in, several electronic devices are still going on. It is asserted that many gadgets, computers, widgets used to save data in encrypted digitized form have been seized and to extract the truth, the data has to be decrypted, decoded and retrieved. This will reveal several misdeeds of the persons involved in the crime. The offence is a very complicated one. The data saved in digitised form is protected by the passwords etc. It is not very easy to crack the password and retrieve the data. The petitioner is a software engineer. He has developed the software. He knows all the commands. On finding an opportunity, it will be very easy for him to corrupt or delete the data stored in the hard disc, clouds etc. or from the gadgets or the computers forever and bail may provide him such an opportunity. The petitioner can easily remove all the clues, evidence of the crime by sitting anywhere in the country or abroad if he gets access to the machines. This will seriously impair the investigation or hamper the same.5 M.Cr.C.No.22391 -2021
7. xxx ..............
8. xxx ................
9. It is urged that the investigation is still open in respect of several aspects of the offence. The roots of the offence goes to several countries. The magnitude of the offence can be imagine from the statement. There is nothing on record to bolster the contention of the petitioner that Rs.40,00,000/- paid to him by Raju Verma as remuneration to services rendered by him. Several co-accused persons are still on the run. Their arrest may unfold many secrets. The investigating agency is still trying hard to retrieve the data. Release of the petitioner may facilitate the accused persons to disappear the material evidence to screen the offenders, therefore, he be not granted bail.
10. I have considered rival contentions of the parties and have gone through the record.
11. On due consideration of the contentions raised by Mr Neeraj Gaur representing the state, the report referred to by him, the act attributed to the petitioner, technical nature of the crime, the status of the petitioner, and other facts and circumstances of the case, I do not deem it appropriate to allow bail to the petitioner at this stage, therefore, the petition stands dismissed.
(emphasis supplied)
9. It is apparent from the aforesaid order that although the charge sheet was filed against the applicant at the time when the order was passed by this Court in the second bail application of the applicant. However, apparently the investigation was still not complete. So far as the order passed by this Court in the first bail application M.Cr.C.No.44133/2020 dated 11.11.2020 is concerned, this Court has made the following observations:-
"7. Further, it is asserted that many gadgets, computers, widgets used to save data in encrypted digitised form have been seized and to extract the truth, the data has to be decrypted, decoded and retrieved. This will reveal several misdeeds of the persons involved in the crime. The offence is a very complicated one. The data preserved in digitised form is protected by the passwords etc. It is not very easy to retrieve the data after cracking the passwords. The 6 M.Cr.C.No.22391 -2021 petitioner is a software engineer. He has developed the software. He knows all the commands. On finding an opportunity, it is very easy for him to corrupt or delete data from the hard disc, clouds etc. or from the gadgets or the computers forever and bail may provide him such an opportunity. The petitioner can easily remove all the clues, evidence of the crime by sitting anywhere in the country or abroad if he gets access to the machines. This will seriously impair the investigation or hamper the same.
8. Mr Sharma, The learned panel lawyer drew my attention towards the chats between the petitioner and the other co- accused persons through WhatsApp, which shows that the petitioner was in live contact with the co-accused persons and was dealing with the day to day affairs of the international racket of betting, links of which go up to the Mexico.
9. Lastly, it is urged that the investigation is at initial stage. The magnitude of the offence cannot be imagined at this stage. It may increase manifold if the investigating agency successfully retrieve the data.
10. I have considered rival contentions of the parties and have gone through the record.
11. On due consideration of the contentions raised by Mr Rohit Sharma representing the state, the report referred to by him, the act attributed to the petitioner, stage of the investigation, difficulties and limitations of the investigating agency expressed by the learned penal lawyer, technical nature of the crime, the status of the petitioner, and other facts and circumstances of the case, I do not deem it appropriate to allow bail to the petitioner at this stage, therefore, the petition stands dismissed."
(emphasis supplied)
10. Thus, both the aforesaid orders passed by this Court clearly reveal that the investigation was still pending despite that the charge sheet had already been filed by the prosecution, looking to the time constrain as provided under Section 167(2) of the Cr.P.C. It is not denied that the final charge sheet in the present case was filed on 5.3.2021 and by the time the applicant had already spent 146 days in jail as he was arrested on 11.10.2020.
7 M.Cr.C.No.22391 -2021
11. Now the question before this Court is that whether the applicant is also entitled to be released on default bail as in this case although the charge sheet was filed on 3.12.2020, however, the further investigation in pursuance of the same continued and the final charge sheet has been filed on 5.3.2021. In the considered opinion of this court the right of an investigating officer to further investigate the case is already saved under s.173(8) of Cr.P.C. but a court can always look into the intentions of the investigating officer, i.e., whether the plea of further investigation is made bona fide or only to defeat the right of an accused accrued u/s.167(2) of Cr.P.C. At this juncture, it would be fruitful to refer to the decision rendered by the Supreme Court in the case of Rakesh Kumar Paul vs. State of Assam reported in 2017 15 SC 66, wherein paragraphs 28 to 32 the Supreme Court has observed as under :-
28. We may also look at the entire issue not only from the narrow interpretational perspective but from the perspective of personal liberty. Ever since 1898, the legislative intent has been to conclude investigations within twenty-four hours.
This intention has not changed for more than a century, as the marginal notes to Section 167 of the Cr.P.C. suggest. However, the Legislature has been pragmatic enough to appreciate that it is not always possible to complete investigations into an offence within twenty-four hours. Therefore, initially, in the Cr.P.C. of 1898, a maximum period of 15 days was provided for completing the investigations. Unfortunately, this limit was being violated through the subterfuge of taking advantage of Section 344 of the Cr.P.C. of 1898. The misuse was recognized in the 41 st Report of 8 M.Cr.C.No.22391 -2021 the Law Commission of India and consequently the Law Commission recommended fixing a maximum period of 60 days for completing investigations and that recommendation came to be enacted as the law in the Cr.P.C. of 1973.
Subsequently, this period was also found to be insufficient for completing investigations into more serious offences and, as mentioned above, the period for completing investigations was bifurcated into 90 days for some offences and 60 days for the remaining offences.
29. Notwithstanding this, the basic legislative intent of completing investigations within twenty- four hours and also within an otherwise time-
bound period remains unchanged, even though that period has been extended over the years. This is an indication that in addition to giving adequate time to complete investigations, the Legislature has also and always put a premium on personal liberty and has always felt that it would be unfair to an accused to remain in custody for a prolonged or indefinite period. It is for this reason and also to hold the investigating agency accountable that time limits have been laid down by the Legislature. There is a legislative appreciation of the fact that certain offences require more extensive and intensive investigations and, therefore, for those offences punishable with death or with imprisonment for life or a minimum sentence of imprisonment for a term not less than 10 years, a longer period is provided for completing investigations.
30. The need to expeditiously conclude investigations has been discussed from time to time over the years and the view has been that as far as practicable, the investigating agency should be distinct from the police staff assigned to the enforcement of law and order. This was the view expressed (in 1958) in the 14 the Report of the Law Commission of India as reflected in its 154 the Report (in 1996).6
31. In the 154th Report, the Law Commission noted that the unanimous opinion of members of the Bench and the Bar, prosecuting agencies and senior police officers during legal workshops held at various places was that the investigation of serious offences punishable with a sentence of 7 years or more should invariably be undertaken by 9 M.Cr.C.No.22391 -2021 senior officers. The Law Commission concluded, as a result of these extensive discussions, that it was desirable to separate the investigating police from the law and order police and as many as seven reasons were given for arriving at this conclusion in Chapter II of the Report.
32. Even this Court had occasion to consider this issue and looked into several reports including those of the National Police Commission in Prakash Singh v. Union of India.7 In paragraphs 20 and 21 of the decision, this Court Chapter II paragraph 4 (2006) 8 SCC 1 noted that the Home Minister, all the commissions and committees have concluded that there is an urgent need for police reforms and that there is convergence of views on the need, inter alia, to separate investigation work from law and order. Such views and opinions over a prolonged period have prompted the Legislature for more than a century to ensure expeditious conclusion of investigations so that an accused person is not unnecessarily deprived of his or her personal liberty by remaining in prolonged custody for an offence that he or she might not even have committed. In our opinion, the entire debate before us must also be looked at from the point of view of expeditious conclusion of investigations and from the angle of personal liberty and not from a purely dictionary or textual perspective as canvassed by learned counsel for the State."
12. On perusal of the aforesaid decision, it reveals that the Supreme Court has traced the legislative history of Section 167 of the Cr.P.C. only to see as to what was the purpose of the legislature to provide 60 days or 90 days as the case may be, for completion of the investigation and it is stated that the legislature has always put a premium on personal liberty and has always felt that it would be unfair to an accused to remain in custody for a prolonged or indefinite period. It is 10 M.Cr.C.No.22391 -2021 for this reason, and also to hold the investigating agency accountable, that time limits have been laid down by the Legislature for filing the charge sheet. Thus, it is apparent that the guiding principle for the enactment of Section 167 (2) of the Cr.P.C. was only to ensure that the personal liberty of a person shall not be curtailed only on account of laxity on the part of the Investigating Officer and to ensure that the investigation even in most serious offences must complete within a period of 90 days. Now testing the facts of the case in hand on the anvil of the aforesaid decision of the Supreme Court, this Court is of the opinion that as observed by this court in both the earlier bail orders of the applicant, the investigation was pending in respect of certain technical aspects of the matter, in such circumstances, it cannot be said that merely as the investigation was still pending despite filing of the charge sheet, the applicant is entitled to default bail under section 167(2) OF Cr.P.C. Thus, the arguments as advanced by Shri Manan cannot be accepted on this issue. However, it is also found that no further significant evidence has been collected against the applicant even when the complete charge sheet has been filed after 146 days and both the earlier bail applications have been dismissed as the investigation was not complete. This Court also finds that the prosecution has proposed to examine as many as 95 witnesses in the case and the applicant has already suffered around 7-8 months of 11 M.Cr.C.No.22391 -2021 incarceration, considering the fact that the applicant is a Software Engineer and his role is confined only to providing a software for gambling, this is the first time that he is arraigned in any offence and the final conclusion of the trial is likely to take sufficiently long time as the trial courts are also not functioning now-a-days on account of Covid-19. In such facts and circumstances of the case, this Court finds it expedient to allow the present bail application. As a result, the application filed by the applicant is allowed.
13. The applicant is directed to be released on bail upon furnishing a personal bond in the sum of Rs.25,000/- (Rupees Twenty Thousand only) with one solvent surety of the like amount to the satisfaction of the trial Court for his/her regular appearance before the trial Court during trial with a condition that he / she shall remain present before the court concerned during trial and shall also abide by the conditions enumerated under Section 437 (3) Criminal Procedure Code, 1973. The applicant shall also deposit his passport in the trial court at the time of furnishing the bail bonds.
Certified copy as per rules.
(Subodh Abhyankar) Vacation Judge moni Digitally signed by MONI RAJU Date: 2021.06.02 12:33:04 +05'30'