Karnataka High Court
Shri Mehafuz Ali Khan vs Cbi Police Station on 15 March, 2013
:1:
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 15TH DAY OF MARCH 2013
BEFORE
THE HON'BLE MR.JUSTICE K.N.KESHAVANARAYANA
CRIMINAL PETITION NO.7676 OF 2012
BETWEEN:
SHRI.MEHAFUZ ALI KHAN
S/O SHRI.IQBAL ALI KHAN
AGED ABOUT 29 YEARS
RESIDENT OF FLAT NO.516
THIRUMALA SAI APARTMENT
BELAGAL CROSS
BELLARY, KARNATAKA
OCCUPATION
MANAGING PARTNER OF
FIRM M/S DEVI ENTERPRISES
6TH CROSS, KAPAGAL ROAD
BELLARY - 583 104.
...PETITIONER
[BY SRI.ASHOK HARANAHALLI SR. COUNSEL FOR
SRI.M.S.SHYAMSUNDAR AND
SRI.PARSHUKUMAR, ADV.]
AND:
CBI POLICE STATION
CENTRAL BUREAU OF INVESTIGATION
BELLARY ROAD, GANGANAGAR
BANGALORE - 560 032 ...RESPONDENT
[BY SRI.C.H.JADHAV, SR.COUNSEL]
:2:
THIS CRL.P. FILED UNDER SECTION 439 R/W
SEC.167(2) CR.P.C. BY THE ADVOCATE FOR THE
PETITIONER PRAYING THAT THIS HON'BLE COURT
MAY BE PLEASSED TO ENLARGE THE PETITIONER
ON AIL IN SPL.C.C.NO.116/2012 ON THE FILE OF THE
XLVI AC AND S.J. AND SPL. JUDGE FOR CBI CASES
AT BANGALOR CITY (CCH-47), WHICH IS RGD., FOR
THE OFFENCE PUNISHABLE UNDER SECTION 120 (B),
379, 409, 420, 447, 468, 471, 477-A OF IPC AND
UNDER SECTION 13 (2) R/W SEC13(1)(C) & (D) OF
PREVENTIONOF CORRUPTION ACT, 1988.
Reserved on : 01/03/2013
Pronounced on : 15/03/2013
This Criminal Petition having been heard and
reserved for orders, coming on for pronouncement of
order this day, the Court delivered the following:
ORDER
In this petition filed under Section 439 r/w Section 167 (2) of the Code of Criminal Procedure, the petitioner arraigned as accused No.5 in Special C.C.No.116/12 pending on the file of Special Court for CBI cases (CCH-47), Bangalore has sought for an order to enlarge him on bail.
2. The case of the prosecution in brief are as under:
The Central Empowered Committee in its report dated 21.9.2011 submitted to the Hon'ble Supreme Court of India in Special Leave to Appeal (Civil) No.7366-67/2010 and connected matters, reported that illegalities have been committed by various persons in the matter of Mining Lease :3: No.2434 related to M/s Associated Mining Company with regard to illegal grant of renewal of mining lease; the existing locations of the boundary pillars being completely different from the sanctioned lease sketch and quantity of iron ore shown to have been produced and dispatched from the mining lease being far in excess of the quantity that could have been physically produced and dispatched from the mining lease area. The said report also referred to various observations made in the report dated 27.7.2011 submitted by Karnataka Lokayukta. Based on the said report of the Central Empowered Committee as well as the report of the Karnataka Lokayukta, the Hon'ble Supreme Court in its order dated 23.9.2011 held that Court is prima facie satisfied that at the relevant time there existed linkages between the alleged illegal mining in Bellary Reserve Forest falling in District of Anantpur in Andhra Pradesh and the above mentioned illegalities in Bellary District of Karnataka and directed the CBI to register an FIR and to investigate into the matter. Pursuant to the such direction, the CBI/ACB, Bangalore registered case in R.C.18(A)/2011 for the offences punishable under Sections 120-B, 420, 379, 411, 427, 447, 468, 471, 477-A OF IPC; under :4: Section13(1)(d) of Prevention of Corruption Act, 1988; under Section 26 of the Indian Forest Act, 1927 and under Section 21 r/w Section 4(1), 4(1) (A) & Section 23 of MMDR Act, 1957 against accused No.1-G.Janardhana Reddy and others.
Subsequently, during the course of investigation, the offences punishable under Section 409 of IPC was also included in to the case.
3. During the course of investigation of the case, the complicity of this petitioner in the Commission of offence was revealed. Therefore, he was arraigned as accused No.21. Later, on 02.03.12, this petitioner appeared before the jurisdictional Court voluntarily and submitted himself to the jurisdiction of the Court. Therefore, on that day he was taken to custody. On 05.03.12 at the request of CBI/ACB, Bangalore, this petitioner was given to police custody up to 12.3.2012 and extended up to 16.3.12, on which date he was remanded to judicial custody. Thereafter, the petitioner along with other accused persons filed application for grant of bail under Section 439 of the Code of Criminal Procedure. The said application was heard and orders thereon were pronounced on 30.5.2012 rejecting the said application. On :5: the same day, the Investigating Officer filed charge sheet arraigning this petitioner as accused No.5 for the aforesaid offences. After the rejection of the bail application on 30.5.2012, the petitioner approached this Court in Crl.P.No.3053/12 inter alia contending that though the charge sheet purported to have been filed on 30.5.2012 there is no endorsement in the order sheet about the filing of the charge sheet by the Investigating Officer and as could be seen from the order sheet maintained by the jurisdictional Court, cognizance of the offences is shown to have been taken on 29.06.12, therefore, it is deemed that the charge sheet has been filed beyond the period of 90 days and since the petitioner had acquired an indefeasible right to be released on bail upon expiry of 90 days, he is entitled to be released on bail. It was also contended that assuming that the charge sheet has been filed on 30.5.2012, since the cognizance of the offences alleged were not taken immediately and the period of 90 days had expired, by 30.05.2012,the jurisdictional Court had no power to remand the petitionerunder Section 167 (2) of the Code of Criminal Procedure after the expiry of 90 days and since there was no remand under any other provision or under Section 309 of :6: the Code of Criminal Procedure, the remand of the accused from 31.05.2012 up to the date on which the cognizance was taken, was illegal and without authority of law and therefore, the petitioner is entitled to be enlarged on bail. However, this Court by order dated 24.7.2012, in the light of the facts that in the bail application filed before the Trial Court by the petitioner no such ground concerning the right of bail under Section 167(2) of Code of Criminal Procedure had been taken, was of the view that the Court cannot at that stage consider the arguments put forth on behalf of the petitioner and since the Trial Court had dismissed the application mainly on the ground of charge sheet having not been filed, the petitioner was given liberty to approach the trial Court for grant of delay in the light of the charge sheet subsequently filed and liberty was also given to the petitioner to urge the contentions concerning detention being illegal beyond 30.5.2012 and the Trial Court was directed to consider such application on merits and in accordance with law. With the said observation, the petition came to be disposed of. After the disposal of Crl.P.No.3053/12, the petitioner along with accused Nos.1 and 7 filed application for grant of bail both under Section 167 (2) and Section 439 :7: of Code of Criminal Procedure. The Trial Court by order dated 25.9.12 dismissed the application filed by this petitioner as also the applications of accused Nos.1 and 7. Therefore, the petitioner has approached this Court with this petition.
4. The petition is opposed by the respondent-CBI.
5. A detailed statement of objections has been filed along with copies of the documents.
6. I have heard Mr.Ashok Haranahalli, learned Senior Counsel appearing for the petitioner and Sri.C.H.Jadhav, learned Senior Counsel appearing for the respondent-CBI.
7. The learned Senior Counsel appearing for the petitioner during the course of the arguments though did not rightly so, dispute the factum of filing of the charge sheet before the jurisdictional Court on 30.5.2012 having regard to the specific endorsement made by the learned Trial Judge on the charge sheet itself, contended that since the cognizance of the offences alleged in the charge sheet were not taken immediately after filing of the charge sheet and since the Trial Court had no jurisdiction under Section 167(2) of Code :8: of Criminal Procedure to extend the custody of the petitioner beyond 30.5.2012 and since cognizance was not taken immediately and custody was not extended in exercise of power under Section 309 of Cr.P.C, the custody of the petitioner from 31.5.12 up to 29.6.12, the date on which cognizance was taken was illegal and therefore, the petitioner is entitled for the statutory bail under Section 167(2) of the Code of Criminal Procedure. He further contended that since, the petitioner had invoked the right of bail before filing of the charge sheet, the petitioner was entitled for statutory bail notwithstanding that the charge sheet came to be filed subsequently. On merits, the learned Senior Counsel contended that the allegations made in the charge sheet and the evidence produced therein does not prima facie make out any offence against the petitioner and therefore, the petitioner is entitled to be enlarged on bail. According to the learned Senior counsel even according to the allegations in the charge sheet, the petitioner is an agent of accused No.1, in the capacity as a Personal Assistant and the case of the prosecution does not prima facie indicate entrustment of any property to the petitioner, as such the offences punishable under Section 409 of Indian Penal Code :9: is not attracted. He further contended that the cognizance of the offences under the provision of MMDR Act could not have been taken by the Court on the basis of the police report in view of the bar under Section 22 of the said Act. He further contended that there is no allegation of forgery or falsification of the documents against the petitioner, therefore, the petitioner stands on a different footing than accused No.1 and the allegation made in the charge sheet may at best attract the ingredients of the offence under Sections 379 & 447 of IPC against this petitioner and regard being had to the nature and gravity of the said offences as well as the punishment prescribed for the same, the petitioner is entitled to be enlarged on bail. He further contended that the petitioner has already been in judicial custody for nearly one year, the investigation is over as such there is no chance of the petitioner tampering the prosecution evidence and the conduct of the petitioner in voluntarily appearing before the Court would indicate that he is not likely to flee away from justice, therefore, he is entitled to be enlarged on bail.
: 10 :
8. On the other hand Mr.C.H.Jadhav, learned Senior Counsel by drawing the attention of this Court to para No.20 of the order passed by the learned Trial Judge contended that in the light of the decision of Division Bench of this Court in the case of Yashodamma vs. State of Karnataka reported in 2008 (2) AIR KAR R 299 (DB) the petitioner is not entitled for the statutory bail under Section 167(2) of the Code of Criminal Procedure. He further contended that the period of custody from 31.5.2012 to 29.6.12 is protected under the explanation to Section 167(2) of the Code of Criminal Procedure, therefore, the custody during that period cannot be termed as illegal and on that ground the petitioner cannot be released on bail. He further contended that admittedly, the petitioner did not invoke his indefeasible right under Section 167(2) of Code of Criminal Procedure after the expiry of 90 days and that indefeasible right was ceased to exist subsequent to filing of the charge sheet, therefore, he is not entitled for statutory bail under Section 167 (2) of the Code of Criminal Procedure. In this regard, reliance was placed on the decision of the Apex Court in the case of Pragyna Singh Thakur vs. State of Maharashtra reported in (2011) 10 SCC 445. He further contended that : 11 : the material on record prima facie indicates that the offences alleged against the petitioner attract the Section 120(B)(a) of Indian Penal Code. He further contended that para No.27 of the charge sheet indicates that further investigation in the matter is still pending, therefore, there is likelihood of tampering the prosecution evidence. He further contended that pursuant to subsequent orders of Hon'ble Supreme Court dated 7.9.2012 in W.P.No.582/09 and connected matters, five cases have been registered by the CBI in R.C.Nos.13 to 17/2012 against this petitioner and others alleging theft of seized iron ore stacked in Belekere port and its illegal export and that in R.C.15/12 for securing the presence of this petitioner, body warrant has been issued. This according to learned Senior Counsel, shows that the investigation to several other acts committed by this petitioner along with other accused is pending and therefore, the presence of this petitioner is necessary. He further contended that several witnesses have communicated to the CBI and the Court regarding threat given to them and therefore, there is every likelihood of the petitioner in the event of his release on bail, tampering and threatening the witnesses thereby hampering the investigation as well as the : 12 : trial of the case. Therefore, he sought for dismissal of the petition.
9. I have bestowed my anxious consideration to the submissions made by both the sides.
10. The points that arises for consideration are:
(i) Whether the petitioner is entitled for a statutory bail under Section 167(2) of the Code of Criminal Procedure?
(ii) Whether the petitioner is entitled for the release of bail on merits?
RE: POINT NO.1
11. With regard to the statutory bail under Section 167(2) of the Code of Criminal Procedure sought is concerned, there are several undisputed facts. The petitioner appeared before the jurisdictional Court on 2.3.2012, on which day he was taken to custody and though for some time he was remanded to police custody later he was remanded to judicial custody. The period of 90 days from the date of first remand expired on 30.5.2012. Though as on 30.05.2012 the bail application filed by the petitioner was : 13 : pending, it was not for statutory bail under Section 167(2) of the Code of Criminal Procedure. Obviously, he could not have sought for statutory bail under Section 167(2) of the Code prior to 30.5.12. The application filed by the petitioner for bail came to be rejected by the trial Court on 30.5.2012. In the earlier petition filed before this Court the petitioner sought to rely on the subsequent event to seek statutory bail. The grounds urged as noticed supra, was that though the charge sheet shown to have been filed on 30.5.2012 cognizance was not immediately taken, but the cognizance was taken only on 29.6.2012, therefore, the charge sheet is deemed to have been filed only on 29.6.2012, in which event, the petitioner was entitled for statutory bail after expiry of 30.5.2012. It was also contended that in any case since the custody of the petitioner was not authorized under Section 309(2) of the Code of Criminal Procedure, the custody from 31.5.12 up to 29.6.12 was illegal. However, this Court did not examine the said aspect of the matter on the ground that the petitioner had not sought for statutory bail under Section 167(2) of the Code of Criminal Procedure after expiry of 90 days. Nevertheless, the Court having regard to the contention urged that the period of custody from 31.5.12 to : 14 : 29.6.12 was unauthorized and illegal, directed the Trial Court to consider the said aspect of the matter also. It is thereafter, the petitioner filed application before the Trial Court.
12. As noticed supra, during the course of arguments, learned counsel for the petitioner, having regard to the endorsement made by the jurisdictional Court on the original charge sheet, submitted that the petitioner is not in a position to dispute the factum of filing of the charge sheet on 30.5.2012. In view of the fact that the charge sheet came to be filed on the 90th day from the date of the first remand of the petitioner, the petitioner did not acquire the indefeasible right. The question would be whether the accused person acquires indefeasible right even when the charge sheet is filed within the period of 60/90 days mentioned in Section 167(2) of the Code, if the cognizance is not taken and custody is authorized under Section 309(2) of Cr.P.C. This position is very much clear from the provisio to Section 167(2) of the Code itself. What is required under Section 167(2) of Cr.P.C is that the final report is to be filed within the aforesaid period and it does not deal with the taking of : 15 : the cognizance by the Court. Of course, once, the charge sheet is filed, the jurisdictional Court would cease to exercise its power under Section 167 of the Code to extend the remand. The only other source of power of the Court to extend the custody would be Section 309 of Cr.P.C. after the cognizance is taken. No doubt, the law requires that the Court before whom the charge sheet is filed to immediately without loss of time peruse the charge sheet papers and consider as to whether there are sufficient materials to take cognizance for the offences alleged and for summoning the accused. However, if some time is taken for this exercise, the question would be whether the accused would still be entitled for statutory bail on the ground that his custody is illegal. This position in my considered opinion is not mere res integra in the light of the decision of the Division Bench of this Court in Yashodamma's case referred to supra. The very question referred to by the Division Bench in that case was whether the remand of an accused under Section 167 of Cr.P.C. comes to an end as soon as the charge sheet is filed and if there is delay in the Magistrate taking cognizance of the offence, whether the intervening period from the time the charge sheet is placed until the cognizance is taken amounts : 16 : to illegal detention. The Division Bench after considering the statutory provisions and also the decisions of the Apex Court and other Courts, answered the said point in negative holding as under:
1. Negative. The detention of an accused subsequent to the date of filing the charge sheet until cognizance is taken will be detention under the 1st Explanation to the proviso to Section 167(2) of the Code of Criminal Procedure.
2. When the charge sheet is filed within the period specified in Section 167(2) of the Code of Criminal Procedure, the accused is not entitled to be released on bail under the proviso to Section 167(2) of the Code of Criminal Procedure, even if the Magistrate fails to take cognizance of the offence within the stipulated time in Section 167(2).
3. When an accused is in custody and charge sheet is filed within the time stipulated, a duty is cast upon the the Magistrate, to consider the charge sheet without undue delay and pass order on the question of taking cognizance of the offences.
However, the delay in taking cognizance of the offence does not render the detention illegal, though it is irregular. Such detention from the : 17 : time the charge sheet is filed within time until cognizance is taken falls under Explanation-I to the proviso to Section 167(2) of the Code of Criminal Procedure to claim compulsory bail will not be available in such an event.
13. The learned Senior Counsel appearing for the petitioner submitted that he has not come across any other decision contrary to the principles laid down in Yashodamma's case. In the light of the dictum of the Division Bench in Yashodamma's case, I see no substance in the contention of the learned Senior Counsel appearing for the petitioner regarding the statutory bail under Section 167(2) of the Code of Criminal Procedure. Therefore, point No.1 is answered accordingly.
Point No.2
14. As per the allegations made in the charge sheet this petitioner and accused No.1, instructed one Dushyant Reddy, M.D. of M/s Vijay Mining & Intra Corp. (P) Ltd., to deploy at the surrendered area of M/s Lakshmi Narayana Mining Company (ML No.2010) known as Dalmia Mines to extract iron ore without any authority and accordingly : 18 : mining activities were carried out during October 2009 to July 2010 and as per instructions of accused Nos.1 and 5, the iron ore produced were handed over to accused Nos.1 and 5, and during this operation accused No.5 along with few other associates of accused No.1 physically supervised the illegal mining of iron ore and in that manner more than 13 Lakhs MTs of iron ore was extracted and transported illegally from the lease hold area of MLM 2010, and more than 10 Lakhs MTs was extracted from the surrounding area. It is further alleged in the charge sheet that accused Nos.1 and 5 forcibly entered the M/s Tiffin Barrytes Mills without their consent and forcibly took more than one lakh tonne and transported the same through M/s JSR Logistics, and they also forcibly took away unspecified quantity of iron ore from Shri.Vrushabendrappa and Sheikh Sab Mines. It is further alleged that pursuant to the conspiracy accused No.5 established weigh bridges at Veeyam plot and Hill Gate plot for weighment of illegally extracted iron ore before transportation to various destinations including M/s JSW Steel Ltd. It is further alleged that accused No.4-the Deputy Conservator of Forest, Bellary, in conspiracy with accused Nos. 1 & 5, issued direction to the Foresters/Forest Guards : 19 : to sign blank Forest way permits and to hand over them to the representatives of M/s AMC, with the help of which accused Nos.1 & 5 transported the illegally extracted ore. It is further alleged that at the instance of accused 1 and 5, accused No.6 the then Deputy Director, Mines & Geology, Hospet forced his subordinate officials to issue false stock verification certificates, certifying the availability of iron ore in the mine head of M/s AMC at ML No.2434, in spite of having full knowledge that no mining activities were carried out at that lease area. According to the charge sheet allegations, the value of illegally extracted and transported iron ore was to the tune of Rs.480 Crores.
15. As noticed supra, the FIR was registered pursuant to the direction issued by the Hon'ble Supreme Court on the basis of the report submitted by the Central Empowered Committee. Of course, when the FIR was registered, the petitioner was not arraigned as an accused. However, the materials produced along with the charge sheet would indicate that during investigation, the complicity of this petitioner was revealed. Therefore, he was arraigned as accused. The materials on record would prima facie indicate : 20 : that the petitioner was working as a Personal Assistant to accused No.1 and in that capacity he has committed several acts, which amounts to offences. According to the prosecution, all the accused conspired together and hatched a conspiracy and in furtherance of the said conspiracy various acts have been committed. Of course, the prosecution has not directly alleged that any public property was entrusted to this petitioner to attract the ingredients of the offence punishable under Section 409 of Indian Penal Code. However, it is the specific case of the prosecution that the aforesaid offences have been committed in furtherance of the conspiracy hatched. Therefore, prima facie in the light of the provisions of Section 120(B)(1) of Indian Penal Code, there are reasonable grounds to believe that the petitioner is guilty of the offences punishable under Section 409 of Indian Penal Code. Of course, Section 22 of the MMDR Act creates a bar for the Court to take cognizance of the offences under the said Act on a police report as cognizance of any offence under the said Act could be taken only on a complaint by the competent person. However, as noticed supra, the case on hand came to be registered pursuant to the direction issued by the Apex Court. Several offences under the Karnataka : 21 : Forest Act and other enactment's have been alleged. The materials on record, prima facie indicates that in the offences committed by the accused persons has resultedin loss of several Crores of rupees to the exchequer. Having regard to the facts and circumstances of the case, I am of the considered opinion that there are reasonable grounds to believe that the petitioner is guilty of the offences alleged. It is also brought on record that subsequent to filing of the charge sheet in this case, five more cases have been registered against this petitioner and others pursuant to the direction issued by the Apex Court with regard to the theft of large quantity of iron ore stacked in Berekere Port, which was subject matter of a seizure pursuant to the order of the jurisdictional Magistrate and illegal export of such iron ore from that place. In connection with that case, it is now reported that the petitioner has been taken to custody and is being interrogated. The notings in the present charge sheet would also indicate that further investigation is still pending. The evidence produced along with the charge sheet would further prima facie indicate that this petitioner threatened and even assaulted the mine owners to carry out illegal mining operation in the lease hold area. The charge sheet : 22 : papers would also further indicate that several material witnesses in the case have written letters to the investigating officer reporting that they have been threatened not to depose before the Court.
16. Having regard to the facts and circumstances of the case and huge loss to the exchequer on account of acts alleged possibility of petitioner tampering the prosecution evidence and also fleeing away from justice cannot be ruled out. His presence is required in several other cases involving theft and illegal export of iron ore. Therefore, in my considered opinion the petitioner is not entitled for the relief of bail. The trial Court on consideration of these factors by an elaborate order has rightly held that the petitioner is not entitled for the relief of bail. Hence, I find no ground to grant bail to the petitioner. In view of the above, petition is dismissed.
Sd/-
JUDGE SS*