CALCUTTA HIGH COURT JUDGMENTS

Rajeev Kumar Vs Central Bureau of Investigation (CBI) & Anr. -13/09/2019

Interrogation of a witness or a suspect under Section 161 of the Code of Criminal Procedure is the part of investigation. If during interrogation the Investigating Officer is satisfied that the person concerned has committed a cognizable offence, then the law permits the Investigating Officer to arrest that person subject to the provisions as contained in the Code of Criminal Procedure. Prior to interrogation or investigation, it cannot be said whether the person who is served notice under Section 160 of the Code of Criminal Procedure would come in the category of a witness or an accused. When a witness becomes an accused, he is entitled to the rights available to the accused. If commission of a cognizable offence by a person is detected in course of interrogation then the law permits the Investigating Officer to arrest that person without warrant and without leave of the Court.

IN THE HIGH COURT AT CALCUTTA

Criminal Revisional Jurisdiction

C.R.R. 1308 of 2019

With

CRAN 2331 of 2019

Present: The Hon’ble Justice Madhumati Mitra

Rajeev Kumar

-Versus-

Central Bureau of Investigation (CBI) & Anr.

Advocate for the Petitioner

: Mr. Milon Mukherjee,

Mr. Debasish Roy,
Mr. Rudradipta Nandy,
Mr. Rajiv Kumar Jha,
Ms. Munmun Basu,
Mr. Santanu Talukdar.

Advocate for the C.B.I.

: Mr.Y.J.Dastoor,

Mr. Anirban Mitra,
Mr. Samrat Goswami,

Mr. Amit Halder.

Heard on :

17.07.2019,18.07.2019,19.07.2019,

22.07.2019,23.07.2019,25.07.2019,
26.07.2019,29.07.2019,01.08.2019,
06.08.2019,07.08.2019,08.08.2019,
09.08.2019,27.08.2019,28.08.2019,
29.08.2019,30.08.2019,02.09.2019,
03.09.2019,04.09.2019,05.09.2019,
06.09.2019,09.09.2019 and 11.09.2019.

Judgment on : 13.09.2019

Madhumati Mitra, J. :

The petitioner is Additional Director General of Police, C.I.D., West Bengal. He has approached this Court with a prayer to invoke the inherent power as envisaged in Section 482 of the Code of Criminal Procedure to
have the proceedings of Case No.RC-04(S)2014 under Section 120B/420/406/409 of the Indian Penal Code and Sections 416 of the Prize Chits and Money Circulation Scheme (Banning) Act, 1978, pending before the Court of Learned Judge Special Court, C.B.I., Barasat, North 24 Parganas, quashed so far he is concerned. (Qua Petitioner).

The factual matrix therefore, would thus be relevant in the matter of assessment of the situation as to whether the relief/reliefs sought for by the petitioner is/are available under the provisions contained in Section 482 of the Code of Criminal Procedure.

In Writ Petition (C)No.401 of 2013 with No.402 of 2013 and T.P.(C) No.445 of 2014 on 09.05.2014, the Apex Court directed the transfer of all cases registered in different police stations of the State against Sarada Group of Companies including Crime No.102 registered in Bidhannagar Police Station, Kolkata (North) on 06.05.2013 for the offences punishable under Section 406/409/120B I.P.C. and all cases in which the investigation is yet to be completed, registered against any other company up to the date of the order of Apex Court, from the State Police Agency to the Central Bureau Of Investigation (C.B.I.).

In the said order the Hon’ble Apex Court made it clear that C.B.I. shall be free to conduct further investigation in terms of Section 173(8)Cr.P.C in relation to any cases where a charge-sheet has already been presented before the jurisdictional Court against the companies involved in any chit fund scam.

In the said judgment the Hon’ble Supreme Court has specifically mentioned that transfer of investigation to the Central Bureau of Investigation (C.B.I.) in terms of the order shall not, however, affect the proceedings pending before the commission of enquiry established by the State Government or any action that is legally permissible for recovery of the amount for payment to the depositors. At the same time the Apex Court has also given direction to the State Police Agencies to provide the fullest co-operation to C.B.I. including assistance in terms of men and material to enable the latter to conduct and complete the investigation expeditiously.

The reasons for transferring the investigation from State Police Agencies to Central Bureau of Investigation would appear in paragraph 35 of the said judgment as under:-

“35. The factual narrative given in the foregoing paragraphs clearly establishes the following:

35.1. That financial scam nicknamed chit fund scam that has hit the States of West Bengal, Tripura, Assam and Odisha involves collection of nearly Rs 10,000 crores (approx.) from the general public, especially the weaker sections of the society which have fallen prey to the temptations of handsome returns on such deposits extended by the companies involved in the scam.

35.2. That investigation so far conducted suggests that the collection of money from the depositors was neither legally permissible nor were such collections/deposits invested in any meaningful business activity that could generate the high returns/promised to the depositors.

35.3. That more than 25 lakh claims have so far been received by the Commissions of Enquiries set up in the States of Odisha and West Bengal which is indicative of the magnitude of scam in terms of number of citizens that have been defrauded by the Ponzi companies.

35.4. That the companies which indulge in Ponzi schemes have their tentacles in different States giving the scam inter-State ramifications. That such huge collections could have international money laundering dimensions cannot be ruled out and needs to be effectively investigated.

35.5. That investigation so far conducted reveals involvement of several political and other influential personalities wielding considerable clout and influence.

35.6. That the role of regulators like SEBI, authorities under the Companies Act and Reserve Bank of India is also under investigation by the State Police Agency which may have to be taken to its logical conclusion by an effective and independent investigation.”

It has been stated by the petitioner in his application that in the year 2013, several cases were registered across the State of West Bengal including Bidhannagar Commissionerate. The State of West Bengal constituted a four member Judicial Inquiry Commission, headed by Justice (Retd.) Shyamal Sen, to prove the scam.

On 26.04.2013, the State of West Bengal constituted a Special Investigation Team (S.I.T.) to investigate into the companies. That Special Investigation Team was headed by the Director General of Police and the Inspector General of Police, West Bengal, who was in charge of overall Superintendence of the cases. During the course of the investigation by Special Investigation Team, the Additional Director General (A.D.G.), C.I.D. was to assist the Director General of Police and the Inspector General of Police, West Bengal and for this reason all the communications were made by the Office of the A.D.G., C.I.D. with the various units and other investigating agencies including the various District Superintendent of Police in the State. It has been submitted by the petitioner that the State Police Authorities have rendered all kinds of assistance to the Central Bureau of Investigation in compliance with the directions of the Hon’ble Supreme Court dated 09.05.2014.

It is the specific contention of the petitioner that the State Police had handed over all the investigations/documents/records to the Central Bureau of Investigation in the year 2014, in compliance with the directions of Hon’ble Apex Court dated 09.05.2014. Petitioner has contended that he is not named in any of the F.I.R. or in any charge-sheet filed by either of the Police or by the Central Bureau of Investigation. Petitioner has stated that he received three notices in total till 03.02.2019 under Section 160 of the Code of Criminal Procedure and he responded to the said three notices dated 18.10.2017, 23.10.2017 and 08.12.2018.

The Central Bureau of Investigation moved before the Supreme Court vide M.A.No.1720 of 2017, in Writ Petition(C)No.401 of 2013, citing Hostile Environment in the State and alleging non-cooperation by the officials of the State. That application was contested by the State of West Bengal. After hearing both sides, the Hon’ble Court was pleased to direct both the investigating agencies to work in tandem.

In his application the petitioner has further contended that on 03.02.2019, a large number of persons claiming to be from Central Bureau of Investigation arrived at the residence of petitioner. Such persons were informed that the petitioner was in his Office at Lalbazar, but they insisted on entering his residence. When those persons were asked to show search warrant, they failed to show the same. The petitioner has stated that the C.B.I. on 03.02.2019 visited the residence of the petitioner with mala fide intention to harass, humiliate and tarnish his reputation.

The Central Bureau of Investigation thereafter filed a contempt petition(C)No.166 of 2019 against the Chief Secretary, Director General of Police and the present petitioner alleging contempt of orders dated 09.05.2014, 15.12.2015, 05.12.2017 and 16.07.2018 passed by the Supreme Court in Writ Petition(C) No.401 of 2013 and ancillary proceedings therein. The Central Bureau of Investigation also preferred an application seeking directions, being M.A.No.302 of 2019, in W.P.(C)No.401 of 2013. Vide order dated 05.02.2019, the Hon’ble Supreme Court granted protection to the petitioner against coercive steps and the petitioner was also directed to appear for interrogation at Shillong. The petitioner appeared at Shillong for interrogation by the Central Bureau of Investigation and he was subjected to questioning for about 39 hours 45 minutes from 09.02.2019 to 13.02.2019. Petitioner has claimed that he responded to each query truthfully and to his best knowledge, despite the questions being repetitive in nature. The entire interrogation was video-graphed. The Central Bureau of Investigation moved an application being I.A.No.58327 of 2019, in contempt petition(C)No.166 of 2019 seeking vacation of interim order dated 05.02.2019 and custodial interrogation of the petitioner. The Hon’ble Supreme Court on 17.05.2019 withdrew the protection granted to the petitioner on 05.02.2019 with direction that the said interim order dated 05.02.2019 would continue for a period of seven days from the date of pronouncement of this order to enable the petitioner to approach competent Court for relief, if so advised.

The Investigating Officer of the Central Bureau of Investigation once again issued a notice under Section 160 of the Code of Criminal Procedure dated 26.05.2019, directing the petitioner to appear before Investigating Officer on 27.05.2019 at 12:00 hours and the petitioner has stated that at the relevant point of time he was on sanctioned leave and sent a reply seeking time. Petitioner has stated that he came to know from media reports that even before issuance of notice under Section 160 of the Code of Criminal Procedure, a look out circular has been issued against the petitioner to prevent any foreign travel by him.

It has been categorically contended by the petitioner that the present opposite party, the Central Bureau of Investigation with mala fide and for collateral purposes issued notices under Section 160 of the Code of Criminal Procedure for interrogation in connection with impugned proceedings though he was thoroughly interrogated by the Investigating Agency. Petitioner has apprehended that he would be taken under custody on the flimsy ground of necessity for custodial interrogation. It is also the contention of the petitioner that till date he has not been implicated as an accused in connection with the impugned proceedings. It has also been stated by the petitioner that he has been served notices under Section 160 of the Code of Criminal Procedure for interrogation to record his statement under Section 161 of the Code of Criminal Procedure and there is no such power of the Investigating Authority to interrogate a witness under custody. Petitioner has alleged that continuance of the impugned proceedings is vexatious, mala fide and has been initiated with an oblique motive to harass and humiliate the petitioner. Petitioner has also stated that he had acted in discharge of his official duties as Commissioner of Police, Bidhannagar as well as members of Special Investigation Team and as such he is covered under Protection under Section 45(2) of the Code of Criminal Procedure.

The factual score depicts that the opposite party/the Central Bureau of Investigation while praying for recall of interim protection granted to the petitioner Mr. Rajeev Kumar, submitted before the Hon’ble Supreme Court

vide application for appropriate directions dated 05.04.2019, that the petitioner has not cooperated during the interrogation. He gave evasive replies, tried to shift the blame or responsibility either on to his subordinates or on his Superior Officers. He claimed his innocence about his role in the larger criminal conspiracy in the investigation of the money trail. He also claimed innocence with regards to giving clean chit to all influential people stating that they never influenced the investigation. He denied trying to shield some body and he did not provide any clues for recovering the case property, involvement of the persons, place of concealment of case properties, etc. In the said application the C.B.I. has submitted before the Apex Court that in order to recover the material evidence and to investigate into the acts of commission and omission on the part of Bidhannagar Police Commissionerate and the SIT in causing concealment or causing disappearance of evidence that was collected by them during their investigation and to investigate into the larger conspiracy aspect, the petitioner and other Police Officers are required for custodial interrogation.

From the order dated 17.05.2019 passed in connection with M.A.No.302 of 2019 in W.P.(C)No.401 of 2013 and Anr. it appears that the Hon’ble Court has been pleased to pass the following order:-

“Therefore, in the given facts, we would withdraw the protection given to Mr. Rajeev Kumar, Former Commissioner of Police, Kolkata, vide our order dated February 05th ,2019 restraining the C.B.I. from arresting him and thereby, leave it open to the C.B.I. to act in accordance with law. At the same time, we direct that the interim order dated February 05th,2019 would continue for a period of seven days from the date of pronouncement of this order to enable Mr.Rajeev Kumar to approach Competent Court for relief, if so advised. The aforesaid directions would be in consonance with the decisions in A.R.Antulay V. R.S.Nayak and Another reported in (1988)2 SCC 602, which mandates that the procedure established in law should be strictly complied with and should not be departed from to the disadvantage or detriment of any person.

We clarify that we have not made any comments on the merits of the contentions and the reasons recorded in the present order would not be a ground to accept or reject the request of custodial interrogation or grant of protection, if any such application/petition is moved.”

On 30.05.2019, Vacation Bench of this Court passed an interim order in connection with the present C.R.R. 1308 of 2019 for a period of one month from the date of reopening of the Court or until further order, whichever is earlier, the petitioner shall not be subjected to coercive process or be arrested on certain conditions as mentioned in the said order.

Learned Senior Counsel Mr. Milon Mukherjee appearing for the petitioner has forcefully contended that the question of taking the petitioner in custody for interrogation does not arise at all as opposite party issued notices to the petitioner under the provision of Section 160 of the Code of Criminal Procedure which is meant for the witnesses only. He has further contended that there is no such provision in the Code of Criminal Procedure to take a witness in custody for the purpose of interrogation. In support of his contention Learned Counsel has invited the attention of the Court to Article 21 of the Constitution of India and Sections 160 and 161 of the Code. It has been vigorously submitted by the Learned Counsel that no person shall be deprived of his life or personal liberty except according to procedure established by law. Again he has contended that in view of provision contained in Article 20(3) of the Constitution of India no accused of any offence shall be compelled to be a witness against himself. It is the specific contention of the Learned Counsel for the petitioner that the name of the petitioner has not been mentioned in any of the First Information Reports nor he has been charge-sheeted in connection with any case in relation to chit fund scam. The petitioner is in a better position than an accused. Learned Counsel has expressed the apprehension of the petitioner that unless the petitioner is granted a protective order from the Court against taking coercive step by the Investigating Officer then there is every chance to take him custody by converting his status from a witness into an accused. In that case, the petitioner would be deprived of his right to approach before the Court for anticipatory bail.

Learned Counsel for the petitioner has also submitted that SIT was headed by D.G., West Bengal Police and he was assisted by A.D.G., C.I.D.

According to his contention the function of SIT was expanded and many other Officers were co-opted as members of SIT. It is the specific contention of the Learned Counsel for the petitioner that the petitioner has been targeted and singled out. It has been argued by the Learned Counsel for the petitioner that no police official of Jammu and Kashmir has been examined by C.B.I., though the initial seizure and arrest was done by them. He has also submitted that the opposite party C.B.I. is trying to cover up its own laches and is selectively targeting him. He has also argued that no new evidence or material or money trail or larger conspiracy unearthed by C.B.I. till date despite passage of more than 5 years.

Learned Senior Counsel appearing for the petitioner has submitted that C.B.I. issued summons to the petitioner after more than three years of taking over charge of investigation in May 2014. For the last five years, the progress of investigation is not at all satisfactory. It has been also contended by the Learned Counsel for the petitioner that Mr.Kumar wrote several letters to Director of C.B.I. for joint discussion over the issues regarding investigation between the State Police Officials and the C.B.I., but C.B.I. did not response. It has been forcefully contended by the Learned Advocate for the petitioner that West Bengal Police including SIT had already handed over all the seized papers and articles to the C.B.I. as per the direction of the Apex Court dated 09.05.2014. It has been specifically contended on behalf of the petitioner that the mobile phones and laptop were handed over to Shri Supriyo Sen and Smt.Debjani Mukherjee as per the direction of the Learned Magistrate. In the name of interrogation C.B.I., intends to malign the petitioner and to tarnish his reputation.

In support of his contention, the Learned Counsel has placed his reliance on several decisions. The decisions so cited by him as under:-

1) Siddharam Satlingappa Mhetre Vs. State of Maharashtra reported in (2011)1 SCC 694,
2) Karan Singh Vs. State of Haryana & Anr. reported in (2013)12 SCC 529,

3) A.K. Gopalan Vs. State of Maharashtra reported in AIR 1950 SC 27,
4) Maneka Gandhi Vs. Union of India reported in AIR 1978 SC 597,

5) Smt. Selvi & Ors. Vs. State Of Karnataka & Anr reported in AIR 2010 SC 1974,

6) Madhav Hayawadarao Hoskot Vs. State Of Maharashtra reported in 1978(3) SCC 544,
7) State of Bihar Vs. Lal Krishna Advani reported in 2003(8) SCC 361,

8) Mehmood Nayyar Azam Vs. State of Chattisgarh & Ors. reported in (2012)3 SCC (Cri) 733,

9) Kishore Samrite Vs. State of U.P. reported in (2013)2 SCC 398,

10) Kiran Bedi Vs. Committee of Inquiry reported in (1989)1 SCC 494,

11) Om Prakash Chautala Vs. Kanwar Bhan & Ors. reported in (2014)5 SCC 417,

12) Board of Trustees of the Port of Bombay -Vs-Dilip Kumar Raghavendranath Nadkarni & Ors. reported in (1983)1 SCC 124,

13) District Registrar & Collector, Hyderabad & Anr. Vs. Canara Bank & Ors. reported in (2005)1 SCC 496,

14) State of W.B. & Ors. Vs. Swapan Kr. Guha & Ors. reported in AIR 1982 SC 949,

15) Suresh Nanda Vs. C.B.I. reported in (2008)3 SCC 674,

16) Pramod Suryabhan Pawar Vs. State of Maharashtra & Anr. reported in Criminal Appeal No.1165 of 2019 (@SLP (Cri)No.2712 of 2019),

17) A.R. Antulay Vs. R.S. Nayak & Anr. reported in (1988)2 SCC 602,

18) Ratilal Bhanji Mithani Vs. Asst Controller of Customs, Bombay reported in (1967)3 SCR 926,
19) State of Haryana And Ors Vs. Bhajanlal reported in 1992 Supp (1) SCC 335,

20) Pepsi Foods Ltd & Anr. Vs. Spl Judicial Magistrate & Ors. reported in (1998)5 SCC 749.

On the other hand, Learned Counsel for the C.B.I. has invited the attention of the Court to the entries in the case diary and contended that from the very beginning the petitioner is avoiding interrogation and even during interrogation at Shillong, he did not co-operate. He has submitted that few days back, the petitioner was issued notice by C.B.I. to meet with the Investigating Officer in connection with another case relating to chit fund scam and though the interim order passed in connection with this proceedings has been relaxed to enable the petitioner to meet with the Investigating Officer, he avoided the interrogation on the ground that he was busy with law and order after abolition of Article 370 of the Constitution of India in Jammu and Kashmir. In each and every occasion, whenever any notice was served on him, the petitioner sought for time on the grounds of Durga Puja, Chhot Puja, etc. and afterwards he never informed the C.B.I. regarding his availability to meet with the Investigating Officer. Sometimes, he took up the matter with Director of C.B.I. or other authorities of C.B.I. giving suggestion in respect of investigation. At the end of August this year C.B.I. received eight trunks of documents from State Police.

Mr.Dastoor, Learned Counsel for the C.B.I. has submitted that the claim of the petitioner that the State Police handed over all seized documents to the C.B.I. in 2014 was totally false. C.B.I. was compelled to write to the D.C.D.D. on 01.07.2016, 01.02.2017. On 05.07.2018 Inspector in charge of Electronic Complex Police Station wrote to C.B.I. requesting them to hold inspection of the seized items and Investigating Officer of the case produced seized items at C.B.I. Office at the CGO Complex, Salt Lake on 29.05.2019, 30.05.2019 and 31.05.2019. Learned Counsel has drawn the attention of the Court to seizure lists and submitted that no laptop, C.P.U. were seized during investigation by the State Police.

He has forcefully argued that Mr. Kumar has adopted delaying tactics to avoid interrogation.

Mr. Dastoor, the Learned Senior Counsel appearing for the opposite party, the Central Bureau of Investigation has countered the allegations and aspersions made by the petitioner. He has stated that the allegation of the petitioner that he has been singled out or targeted is baseless. He has contended that in course of investigation they issued notices under Section 160 of the Code of Criminal Procedure to several witnesses including persons who are superior in rank to the present petitioner. They were examined by the C.B.I. and many of them also co-operated with Investigating Agencies. He has also contended that C.B.I. was directed by the Hon’ble Apex Court to find out the money trial and to investigate the larger conspiracy. The petitioner was a member of the SIT formed by the State Government for investigation of the chit fund scam. From the very beginning he did not co-operate with the Investigating Officer and tried to avoid the interrogation. Learned Counsel has tried to impress upon the Court by drawing the attention of the Court to the replies given by the petitioner in response to the notices issued to him by the C.B.I. C.B.I. is investigating the case to find out the money trail under the direction of the Hon’ble Apex Court. He has further contended that instead of co-operating the C.B.I. the petitioner from the very beginning was avoiding the interrogation on various flimsy grounds. It is the specific contention of the C.B.I. that during interrogation at Shillong the petitioner did not co-operate with the Investigating Agencies.

The Learned Counsel for the C.B.I. has further submitted that the constitutional provision as contained in Article 20(3) is applicable to an accused and not to a witness. He has also stated that Article 21 of the Constitution speaks about personal liberty and that liberty cannot be curtailed without procedure established by law. He has contended that the C.B.I. is investigating the case in accordance with law and interrogation is a part of investigation.

Learned Counsel for the opposite party, C.B.I. has challenged the maintainability of the present application. He has contended that the relief sought for by the petitioner is not tenable in law as the Court cannot pass an order giving blanket protection to any person. He has urged that the Investigating Officer can examine any person under Section 160 of the Code of Criminal Procedure and such person may be an accused or a witness or a suspect, and custodial interrogation is qualitatively more elicination-oriented than questioning a suspect who is well ensconced with a protective order.

Learned Counsel for C.B.I. has cited the following decisions:

1) State of Gujarat Vs. Mohanlal Jitamalji Porwal & Anr. reported in (1987)2 SCC 364,

2) M/s Central Wines, Hyderabad Vs. Special Commercial Tax Officer, M/s Artos Breweries Ltd. Vs. Commercial Tax Officer reported in (1987) 2 SCC 371,

3) State of Maharashtra Vs. Mohd. Rashid And Another reported in (2005) 7 SCC 56,

4) State Vs. Anil Sharma reported in (1997) 7 SCC 187, 18

5) State of Maharashtra Vs. Embee Corporation, Bombay reported in (1997) 7 SCC 190,

6) Balasaheb Alias Ramesh Laxman Deshmukh Vs. State of Maharashtra And Another reported in (2011) 1 SCC 364,

7) Election Commission of India Vs. Telangana Rastra Samithi and Another reported in (2011) 1 SCC 370,

8) Poolpandi And Others Vs. Superintendent, Central Excise reported in (1992) 3 SCC 259,

9) Union of India And Others Vs. Pratap Narain And Others. reported in (1992) 3 SCC 268,

10) Kamalanantha And Others Vs. State of T.N. reported in (2005) 5 SCC 194,

For proper appreciation of the contentions of the parties, I think it would be better to have a look at Section 160 of the Code of Criminal Procedure.

This section empowers the Investigating Officer to examine persons who are acquainted with the facts and circumstances of the case. While discussing the applicability of Section 160 of the Code of Criminal Procedure our Apex Court in State Vs. N.M.T. Joy Immaculate reported in 2004 SCC (Cr.) 1722 was pleased to observe as under:

“Section 160 of the Code of Criminal Procedure deals with police officer’s power to require attendance of witnesses. This section aims at securing the attendance of persons who would supply the necessary information in respect of the commission of an offence and would be examined as witnesses in the inquiry or trial therefor. This section applies only to the cases of persons who appear to be acquainted with the circumstances of the case i.e. the witnesses or possible witnesses only. An order under this section cannot be made requiring the attendance of an accused person with a view to his answering the charge made against him. The intention of the legislature seems to have been only to provide a facility for obtaining evidence and not for procuring the attendance of the accused, who may be arrested at any time, if necessary. In other words, this section has reference to the persons to be examined as witnesses in the trial or inquiry to be held after the completion of the investigation. As an accused cannot be examined as a witness either for or against himself, he cannot be included in the class of persons referred to in the section. But the police officers are fully authorised to require the personal attendance of the suspects during the investigation.”

It has been alleged by the petitioner that he was thoroughly examined by the C.B.I. at Shillong, over a period of 39 hours and 45 minutes from 09.02.2019 to 13.02.2019 and he responded to each query truthfully and best of his knowledge, despite the questions being repetitive in nature.

In this connection, Learned Senior Advocate Mr.Dastoor representing the C.B.I. has contended that while interrogating the petitioner, the Investigating Agency faced great inconvenience and was handicapped as the petitioner was armed with a protective order.

In support of his contention, Learned Counsel has cited the decision in State REP. By the C.B.I. Vs. Anil Sharma reported in (1997)7 Supreme Court Cases 187. Learned Counsel has laid emphasis on paragraph 6 of the decision as cited above:-

Paragraph 6 is as under:-

“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 favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is 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 a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders.”

On the other hand, Learned Counsel for the petitioner has contended that the C.B.I. is harassing the petitioner by calling him in the name of interrogation and is trying to malign his dignity and reputation in violation of his personal liberty as guaranteed under Article 21 of the Constitution of India. He has submitted that the decision referred to State REP. By the C.B.I. Vs. Anil Sharma reported in (1997)7 Supreme Court Cases 187 by the Learned Counsel for the C.B.I. has no manner of application to the facts of the present case. He has contended that till date the petitioner has not been arraigned as accused and the decision relates to the grant of anticipatory bail to an accused.

In support of his contention, Learned Counsel for the petitioner has cited paragraph 1 of the decision of Om Prakash Chautala Vs. Kanwar Bhan and Others reported in (2014)5 SCC 417 . In paragraph 1, our Apex Court has observed as under:

“1.Reputation is fundamentally a glorious amalgam and unification of virtues which makes a man feel proud of his ancestry and satisfies him to bequeath it as a part of inheritance on the posterity. It is a nobility in itself for which a conscientious man would never barter it with all the tea of China or for that matter all the pearls of the sea. The said virtue has both horizontal and vertical qualities. When reputation is hurt, a man is half-dead. It is an honour which deserves to be equally preserved by the down trodden and the privileged. The aroma of reputation is an excellence which cannot be allowed to be sullied with the passage of time. The memory of nobility no one would like to lose; none would conceive of it being atrophied. It is dear to life and on some occasions it is dearer than life. And that is why it has become an inseparable facet of Article 21 of the Constitution. No one would like to have his reputation dented. One would like to perceive it as an honour rather than popularity. When a court deals with a matter that has something likely to affect a person’s reputation, the normative principles of law are to be cautiously and carefully adhered to. The advertence has to be sans emotion and sans populist perception, and absolutely in accord with the doctrine of audi alteram partem before anything adverse is said.”

Mr. Dastoor, the Learned Counsel has contended that the decisions cited by the petitioner are in connection with Article 21 and 20(3) of the Constitution of India and relate to the right of an accused. He has contended that repeated questioning of a person who is served notice under Section 160 of the Code of Criminal Procedure is part of the investigation process and this cannot be considered as harassment or violation of his personal liberty. He has also submitted that the protection under Article 20(3) of the Constitution does not cover a witness or a suspect as the language used in Article 20(3) only referred to an accused.

In support of his submission, he has cited a decision in Poolpandi

and Others Vs. Superintendent, Central Excise and Others reported in (1992)3 SCC 259.

Paragraph 6 of the said judgment is as under:-

“6. Clause (3) of Article 20 declares that no person accused of any offence shall be compelled to be a witness against himself. It does not refer to the hypothetical person who may in the future be discovered to have been guilty of some offence. In Ramesh Chandra Mehta case [(1969) 2 SCR 461 : AIR 1970 SC 940 : 1970 Cri LJ 863] , the appellant was searched at the Calcutta Airport and diamonds and jewelleries of substantial value were found on his person as also currency notes in a suitcase with him, and in pursuance to a statement made by him more pearls and jewellery were recovered from different places. He was charged with  offences under the Sea Customs Act. During the trial, reliance was placed on his confessional statements made before the Customs authorities, which was objected to on the ground that the same were inadmissible in evidence inter alia in view of the provisions of Article 20(3). While rejecting the objection, the Supreme Court held that in order that the guarantee against testimonial compulsion incorporated in Article 20(3) may be claimed by a person, it has to be established that when he made the statement in question, he was a person accused of an offence. Pointing out to the similar provisions of the Sea Customs Act as in the present Act and referring to the power of a Customs Officer, in an inquiry in connection with the smuggling of goods, to summon any person whose attendance he considers necessary to give evidence or to produce a particular document the Supreme Court observed thus: (pp. 469-70)

“The expression ‘any person’ includes a person who is suspected or believed to be concerned in the smuggling of goods. But a person arrested by a Customs Officer because he is found in possession of smuggled goods or on suspicion that he is concerned in smuggling is not when called upon by the Customs Officer to make a statement or to produce a document or thing, a person accused of an offence within the meaning of Article 20(3) of the Constitution. The steps taken by the Customs Officer are for the purpose of holding an enquiry under the Sea Customs Act and for adjudging confiscation of goods dutiable or prohibited and imposing penalties. The Customs Officer does not at that stage accuse the person suspected of infringing the provisions of the Sea Customs Act with the commission of any offence. His primary duty is to prevent smuggling and to recover duties of Customs when collecting evidence in respect of smuggling against a person suspected of infringing the provisions of the Sea Customs Act, he is not accusing the person of any offence punishable at a trial before a Magistrate.”

The above conclusion was reached after consideration of several relevant decisions and deep deliberation on the issue, and cannot be ignored on the strength of certain observations in the judgment by three learned Judges in Nandini Satpathy case [(1978) 2 SCC 424 : 1978 SCC (Cri) 236 : (1978) 3 SCR 608, 623, 624, 626-629, 645, 646] which is, as will be pointed out hereinafter, clearly distinguishable.

Learned Counsel for C.B.I. has further contended that the C.B.I. is conducting investigation as directed by the Apex Court considering the magnitude of the alleged offence and to find out the money trail. It is the duty of every person having knowledge or information regarding the offence to assist the investigating agencies to find out the truth and that is why Section 160 of the Code of Criminal Procedure has been incorporated.

Learned Counsel for the C.B.I. has challenged the maintainability of the present petition. He has specifically contended that the present petition is not at all maintainable in its present form and law. Learned Counsel has contended that the petitioner at the time of filing the application prayed for quashing of the proceedings in question and thereafter he moulded his prayer. Now, he has prayed for a direction upon the C.B.I. that no coercive step shall be taken against him by the opposite party without specific leave of this Court on an application being made by the opposite party with due notice to the petitioner showing the materials which necessitates so called custodial interrogation of the petitioner. According to his submission the relief sought for by the petitioner is not permissible in law as no Court shall grant any blanket order in favour of any person. In support of his submission he has referred to the decisions of Balasaheb alias Ramesh Laxman Deshmukh Vs. State of Maharashtra and Another reported in (2011)1 SCC 364. In paragraph 10 of the said judgment the Apex Court

was pleased to observe as under:

“10. At first blush we were inclined to accept this submission but on a deeper scrutiny we find no substance in it and the decision relied on instead of supporting his case, goes against him. Protection under Article 20(3) of the Constitution does not extend to any kind of evidence but only to self-incriminating statements relating to the charges brought against an accused. In order to bring the testimony of an accused within the prohibition of constitutional protection, it must be of such character that by itself it tends to incriminate the accused. The appellant is not an accused in the police case and in fact a witness, whose statement was recorded under Section 161 of the Criminal Procedure Code, and, therefore, not entitled to a blanket protection. However, in case of trial in the police case, answer to certain question if tends to incriminate the appellant, he can seek protection at that stage. Whether answer to a question is incriminating or otherwise has to be considered at the time it is put.”

He has also cited the decision of State of Maharashtra Vs. Mohd. Rashid and Another reported in (2005)7 SCC 56. In paragraph 7 of the said judgment our Apex Court observed as under:

“7. Having heard the learned counsel for the parties and also having perused the record, including the order dated 26-8-2002, it is clear that such a blanket protection of not arresting the first respondent in any crime, except after written notice to him, could not be passed. Accordingly, the direction given in the penultimate paragraph of the impugned order giving blanket protection to the first respondent is set aside and, to that extent, the impugned order stands modified.”

Initially, the petitioner prayed for quashing of the proceedings of Case No. RC-04(S)/2014 pending before the Learned Judge Special Court, C.B.I., Barasat, North 24 Parganas. Thereafter, the petitioner has moulded his prayer by way of supplementary affidavit filed on 29.08.2019. Petitioner has added in his prayer that no coercive steps against the petitioner shall be taken by the opposite party without specific leave of High Court on an application being made by the opposite party with due notice to the petitioner showing the materials which necessitates so called custodial interrogation of the petitioner.

Both the Learned Senior Advocates appearing for the parties took much pain and advanced their eloquent arguments. They have cited a series of decisions. In addition to this, written notes of argument has been filed on behalf of the petitioner.

I, after carefully examining the submissions and counter submissions advanced by the Learned Counsel for the parties both on the legal and factual aspects and after scrupulously examining the arguments submitted by the parties, would like to deal with those contentions seriatim.

The petitioner was one of the members of the SIT as it appears from West Bengal Police gazette notification dated 26.04.2013. At the relevant point of time he was Commissioner of Police, Bidhannagar Commissionerate. The said SIT conducted the investigation up to 09.05.2014.

The very object of Section 160 of the Code of Criminal Procedure is to enable the Investigating Officer to collect information from whomsoever, is found acquainted with the facts of the case in relation to which the investigation is carried out.

In the instant case, the Learned Counsel appearing for the petitioner has taken the plea that the petitioner has been targeted and singled out. Admittedly, the petitioner was one of the members of the Special Investigation Team formed by the State Government to investigate chit fund scam. From the case diary it appears that other Officers who were the members of SIT and who are superior in rank to the petitioner attended and interrogated in response to the notices issued under Section 160 of the Code of Criminal Procedure. The allegation of the petitioner that he has been singled out and targeted cannot be accepted at this stage.

A conjoint reading of Section 160 and 161 of the Code of Criminal Procedure would reveal that the Police Officer making an investigation has the authority to examine any person who is supposed to be acquainted with the facts and circumstances of the case. When such person is examined by the Investigating Officer that person shall be bound to answer truly all questions relating to such case put to him by such Officer. Exception is that the person who is examined by the Investigating Officer is not bound to answer the questions which could expose him to a criminal charge or to a penalty or forfeiture. In Selvi and Others Vs. State of Karnataka reported in AIR 2010 SC 1974 our Apex Court held that the ‘right against self-incrimination’ protect persons who have been formally accused as well as who are examined as suspects in criminal case. It also extends to cover witnesses who apprehend that their answers would expose them to criminal charges in the ongoing investigation or even in cases other than the one being investigation.

It has been argued on behalf of the petitioner that the petitioner has not been served any notice under Section 41A of the Code of Criminal Procedure.

The object of introduction of Section 41A, is so that arrest of accused for cognizable offences for which maximum sentence is 7 (Seven) years, is not made in routine manner and restrictions imposed under Section 41(1)(b) to be followed prior to making such arrest. It is compulsory for the police under Section 41(1) to record reasons for making arrest as well as reasons for not making such arrest. Where arrest is not made under Section 41(1), Police Officer compulsorily has to issue notice of appearance under Section 41A to the alleged accused. Unwillingness of alleged accused to whom notice under Section 41A is issued to identify himself, could be ground for arrest.

In this connection, it would not be out of place to mention that the impugned criminal proceedings are under Sections 120B/420/406/409 of the Indian Penal Code. The maximum punishment for an offence under Section 409 of the Indian Penal Code is life imprisonment. The question of service of notice under Section 41A of the Code of Criminal Procedure is redundant to the petitioner. In his petition, the petitioner has stated that he has not been projected as an accused in any of the First Information Reports lodged in connection with chit fund scam. The objective of issuance of notice under Section 41A is quite different from the objective of issuance of notice to a person under Section 160 of the Code of Criminal Procedure, which is for the purpose of investigation.

Admittedly, RC Case No.04(S)-2014 is being investigated by the Central Bureau Investigation as per the direction of our Apex Court. The Investigating Officer issued notice to the petitioner for his examination under Section 160 of the Code of Criminal Procedure. Section 160 of the Code empowers the Investigating Officer to issue notice for securing the attendance of persons who are acquainted with the facts and circumstances of the case to find out the truth. Repeated questioning of the person is part of investigation process. When the Investigating Officer acts within his statutory limit then the question that the Investigating Officer has acted beyond his authority does not arise. Service of notices upon the petitioner requiring his attendance for the purpose of interrogation by the Investigating Officer cannot be said to be mala fide.

The Learned Counsel for the petitioner has tried to impress upon the Court regarding the mode of investigation and claimed that the State Police extended all sorts of cooperation to the C.B.I. for investigation as directed by the Apex Court.

From the judgment of the Apex Court dated 09.05.2014, it appears that the Apex Court observed that the investigation conducted so far revealed involvement of several political and other influential personalities wielding considerable clout and influence.

Petitioner apprehends that his personal liberty, right to reputation, etc. may be denied by the Investigating Agencies. It is well settled that right to fair trial and fair investigation cannot be so amplified as to permit accused to choose manner of investigation. None is above the law and the petitioner cannot seek special treatment.

We all know that free and fair trial is sine qua non of Article 21 of the Constitution, the apprehension of denial must be reasonable and not imaginary. Reasonableness would obviously depend on the facts and circumstances of a case and their evaluation by the Courts.

It is true that Court has duty to protect and promote citizens’ right and liberty guaranteed under Article 21 of the Constitution of India. This does not mean that right is allowed to be used by a person to enjoy special treatment to keep him away from interrogation by the Investigating Agency under Section 160 of the Code of Criminal Procedure.

Right guaranteed under Article 21 of the Constitution of India does not prohibit arrest on reasonable ground. It cannot be denied that arrest or custody can cause harm to the reputation of a person. As such arrest or custody of person should not be effected on the ground of mere suspicion, but only after a reasonable satisfaction that such arrest or custody is needed for the purpose of ensuring fair investigation.

In the case at hand, the petitioner has failed to substantiate the allegation that he is being called by the C.B.I. for interrogation to harass him, and to injure his reputation.

From the replies given by the petitioner in response to the notices issued under Section 160 of the Code of Criminal Procedure, it appears that, the petitioner took various pleas to avoid interrogation by the C.B.I. The investigating agency is required to find out larger conspiracy. Without cooperation and assistance from all corners, it would be difficult for the investigating agency to find out the truth. It should be the duty of every responsible Officer to assist the investigation.

At the time of making his submission, Learned Counsel appearing for the petitioner has given emphasis on Article 21 of the Constitution of India. He has submitted that in absence of statutory provision, the petitioner cannot be taken into custody. It is his specific contention that our law is quite silent regarding conversion of an witness into an accused. Interrogation of a witness or a suspect under Section 161 of the Code of Criminal Procedure is the part of investigation. If during interrogation the Investigating Officer is satisfied that the person concerned has committed a cognizable offence, then the law permits the Investigating Officer to arrest that person subject to the provisions as contained in the Code of Criminal Procedure. Prior to interrogation or investigation, it cannot be said whether the person who is served notice under Section 160 of the Code of Criminal Procedure would come in the category of a witness or an accused. When a witness becomes an accused, he is entitled to the rights available to the accused. If commission of a cognizable offence by a person is detected in course of interrogation then the law permits the Investigating Officer to arrest that person without warrant and without leave of the Court.

In this connection, I would like to mention that the Investigating Officer has to justify the arrest of any person. Section 60A of the Criminal Procedure Code may be mentioned here:-
“60-A. Arrest to be made strictly according to the

Code.- No arrest shall be made except in accordance with the provisions of this Code or any other law for the time being in force providing for arrest.”

In the decision of Hema Mishra Vs. State of Uttar Pradesh and Others reported in (2014)4 SCC 453 in paragraph 29 here as under:-

29. In Joginder Kumar v. State of U.P. [Joginder Kumar v. State of U.P., (1994) 4 SCC 260 : 1994 SCC (Cri) 1172 : 1994 Cri LJ 1981] the Supreme Court observed: (SCC p. 267, para 20)

“20. … No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person’s complicity and even so as to the need to effect arrest.”

In the decision of Babubhai Vs. State of Gujarat and Others reported in (2010)12 SCC 254 our Apex court observed that fair investigation is a part of Constitutional Right that is guaranteed under Articles 20 and 21 of the Constitution. So, investigation must be fair,

transparent and judicious and accordingly, the investigating agency cannot be permitted to conduct the investigation in a tainted and biased manner.

The issuance of notice to a witness requiring his attendance for interrogation in connection with the case, cannot said to be grounds for the claim, that the investigating agency is conducting the investigation in a biased manner.

Article 21 of the Constitution of India deals with the Right to Liberty. According to this Article no person shall be deprived of his life and liberty without due process of law. At the time of making his submission the Learned Counsel appearing for the petitioner has given emphasis and reiterated that the reputation of the petitioner has been tarnished.

It is true that the right to life and personal liberty protected by Article 21 is not an absolute right but a qualified right. The right as contained in Article 21 does not confer any fundamental right to a person to refuse or not to be interrogated by the Investigating Officer, when he is served notice under Section 160 of the Code of Criminal Procedure. Section 157(1) of the Code of Criminal Procedure provides that a Police Officer shall investigate a case relating to a cognizable offence and if necessary, take necessary measures for the arrest of the offender.

Argument has been advanced on behalf of the petitioner that the petitioner’s right to reputation has been infringed. This submission has no basis at all considering the facts and situation as discussed above.

From the submission and rival submission of the parties and the materials placed on record it appears that the petitioner is not an accused till today. The status of the petitioner in connection with criminal proceedings pending before the Learned Special Judge has not yet been settled. The quashing of an First Information Report or a criminal proceedings, at the instance of a 3rd party is unknown to law.

During the pendency of the application, the petitioner has moulded his prayer and sought for a direction upon the opposite party that no coercive step against him shall be taken by the opposite party without specific leave of this Court on an application by the opposite party with due notice to the petitioner showing the materials which necessitates so called custodial interrogation of the petitioner.

Learned Senior Counsel for the petitioner has drawn the attention of the Court to Section 482 of the Code and submitted that in exercise of inherent power Court can grant appropriate relief to the petitioner.

Section 482 of the Code envisages three circumstances under which the inherent jurisdiction may be exercised namely –

(i) to give effect to an order under the Code;

(ii) to prevent abuse of the process of the Court and

(iii) to otherwise secure the ends of justice.

The present application does not come within the purview of Section 482 of the Code of Criminal Procedure and it cannot be said that continuance of the Criminal Proceedings in respect of R.C-04(S) 2014 would be an abuse of the process of the Court.

I have already observed that at present the petitioner has no locus standi to pray for quashing of the criminal proceedings pending before the Learned Court below. The prayer which has been moulded by the petitioner by way of submitting supplementary affidavit cannot be granted to him, since the investigation of a cognizable offence is a statutory right of the police and the Court should not obstruct the track of investigation so long as the investigating agencies are within their legal bounds.

Confidentiality is always kept in the matter of criminal investigation and it is not desirable to make available the entries in the case diary to the person against whom the Investigating Agencies intend to take action. Moreover, the nature of the relief sought for, is blanket protection of not arresting the petitioner in connection with the impugned criminal proceedings except after making an application before this Court by the C.B.I. and disclosing the materials against him. This type of protection as prayed for by the petitioner is not available under the law and cannot be entertained. If the relief as prayed for is granted, then it would cause unnecessary interference with the investigation.

The application under Section 482 of the Code of Criminal Procedure is devoid of merit and stands dismissed.

Interim order stands vacated.

Re: CRAN 2331 of 2019

In view of the judgment passed in C.R.R.1308 of 2019, the C.R.A.N.

2331 of 2019 application becomes infructuous and stands dismissed. Urgent Photostat certified copy of this order, if applied for, shall be supplied expeditiously after complying with all necessary legal formalities.

(Madhumati Mitra, J.)

13/09/2019

Categories: CALCUTTA HIGH COURT JUDGMENTS

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