Supreme Court redefined and explained the role of Public and Private prosecutors in case of Sessions Trial

The scope of the role of Public prosecutor and Private prosecutor in case of sessions Trial

we find that the extent of assistance and the manner of giving it would depend on the facts and circumstances of each case. If the victim’s counsel feels that a certain aspect has gone unaddressed in the examination of the witnesses or the arguments advanced by the Public Prosecutor, he may route any questions or points through the Public Prosecutor himself. For instance, if the victim’s counsel finds that the Public Prosecutor has not examined a witness properly and not incorporated his suggestions either, he may bring certain questions to the notice of the Court. If the Judge finds merit in them, he may take action accordingly by invoking his powers under Section 311 of the CrPC or Section 165 of the Indian Evidence Act, 1872.

Rekha Murarka Versus The State of West Bengal and Anr-20/11/2019

ACT: Section 301(2) read with 24(8) of Criminal Procedure Code

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1727 OF 2019 [Arising out of SLP (Crl.) No. 7848 of 2019]

Rekha Murarka …..Appellant

Versus

The State of West Bengal and Anr. …..Respondents

JUDGMENT

MOHAN M. SHANTANAGOUDAR, J.

1. Leave granted.

2. This appeal arises out of judgment dated 29.07.2019 passed by the Hon’ble High Court of Calcutta in revisional application C.R.R. No. 2357 of 2018, affirming the order dated 25.07.2018 passed by the Additional District and Sessions Judge, Fast Track Court, Calcutta rejecting an application filed by the Appellant herein, the de facto Complainant in Sessions Case No. 43 of 2014.

The brief facts giving rise to this appeal are as follows:

3.1 The Appellant herein is the widow of one Gyan Prakash Murarka (“the deceased”), who is alleged to have been stabbed and murdered by Respondent No. 2 herein on 16.01.2014. The Appellant is also said to have sustained serious injuries while trying to save her husband. Bowbazar Police Station Case No. 19 of 2014 came to be registered against Respondent No. 2 and on 18.12.2015, charges was framed against him for the commission of offences punishable under Sections 302 and 326 of the Indian Penal Code, 1860. Respondent No. 2 pleaded not guilty and the trial began before the Sessions Court.

3.2 While the evidence was being recorded, the Appellant sought an expeditious trial of the case vide C.R.R. No. 833 of 2016, which was allowed on 09.03.2016. Subsequently, on 10.07.2018, she filed another application under Section 301 read with the proviso to Section 24(8) of the Code of Criminal Procedure, 1973 (“the CrPC”) praying for the following reliefs:

“(a) to advance oral argument in support of question of law and fact only after the learned Public Prosecutor, if so required;

(b) to raise objection in case any irrelevant question is put to any prosecution witness, if so required;

(c) to examine the prosecution witnesses only after the learned Public Prosecutor, if so required;

(d) to cross­examine the defence witnesses, if adduced, only after the learned Public Prosecutor, if so required;

(e) to assist the process of justice in accordance with law;

(f) pass such further or other order(s) and/or direction(s) as it may deem fit and proper.”

3.3 Vide order dated 25.07.2018, the learned Additional District and Sessions Judge, Fast Track Court, Calcutta rejected the said prayer. This was done on the basis that the right of a victim or private individual to participate in the prosecution of a Sessions trial is restricted, and the prosecution is subject to the control of the Public Prosecutor. It was observed that Section 301 of the CrPC does not have an overriding effect over Section 225, which mandates that the prosecution be conducted by the Public Prosecutor. However, in view of Section 301(2) of the CrPC, the learned Judge gave permission to the de facto Complainant to furnish written arguments after the completion of the arguments of the prosecution.

3.4 This order was challenged before the Hon’ble High Court of Calcutta in C.R.R. No. 2357 of 2018. Vide the impugned judgment dated 29.07.2019, the High Court affirmed the order of the Sessions Judge, discussing the crucial role played by the Public Prosecutor in a Sessions trial. Alluding to Section 225 of the CrPC, it was held that the mandate therein that a Sessions trial shall be conducted by a Public Prosecutor is unequivocal and cannot be diluted by the proviso to Section 24(8), which allows the victim to engage a counsel to assist the prosecution. Drawing a distinction between assisting the prosecution and conducting it, the High Court took note of instances where allowing a free hand to the victim’s counsel may hamper the prosecution’s case and impact the fairness of the trial. In view of this, it was held that the request of the victim’s counsel to cross­ examine the defence witnesses after the Public Prosecutor could not be allowed. Accordingly, C.R.R. No. 2357 of 2018 was dismissed. Hence, this appeal.

4. Learned Senior Counsel for the Appellant drew our attention to the relevant provisions in the CrPC, i.e. Sections 301 and 302, the proviso to Section 24(8) and Section 2(w)(a). He argued that these provisions should be read together, and Section 301 should not be read as a bar to Section 24(8) so as to limit the role of the victim’s counsel to mere filing of written arguments. Alluding to the Report of the Malimath Committee on Reforms of Criminal Justice System, 2003 and that of the Madhav Menon Committee on Victim Orientation to Criminal Justice, 2007, he emphasized how victims had been neglected in the criminal justice system. He argued that the 2009 amendment introducing the proviso to Section 24(8) to the CrPC was made in this context, so as to account for instances where the Public Prosecutor may shirk his responsibility or make an omission by oversight.

Relying on the  decisions of several High Courts in Sathyavani Ponrani v. Samuel Raj & Ors. 2010 (2) MWN (Cr.) 273, Shankar v. State of Karnataka & Ors. (2013) 2 AIR Kant R 265, Lokesh Singh v. State of Uttar Pradesh (2013) 83 ACC 379, Uma Saha v. State of Tripura 2014 SCC OnLine Tri 859, Suneel Kumar Singh v. State of Uttar Pradesh 2019 SCC OnLine All 957, and Khumukcham Nikita Devi v. State of Manipur (2017) 176 AIC 839, he argued that the role of the victim’s counsel should extend to putting questions to victims, raising objections to irrelevant questions put by the Public Prosecutor, and making oral arguments in addition to those made by the Public Prosecutor.

5. Per contra, learned Senior Counsel for Respondent No. 1, the State of West Bengal, emphasized that a crucial role has been envisaged for a Public Prosecutor under the scheme of the CrPC. He submitted that the Public Prosecutor is an officer of the Court and a minister of justice, as evident from the mandate placed upon him under Section 225 of the CrPC to conduct a Sessions trial. He argued that the role of such a person cannot be diluted by allowing the victim’s counsel, who may be relatively inexperienced at times, to conduct the prosecution with a free hand. Further, he argued that the use of the words “under this sub­section” in the proviso to Section 24(8) implies that the engagement of a victim’s counsel is only with respect to a Special Public Prosecutor, which is the subject matter of Section 24(8), and not beyond. As regards the Committee Reports mentioned supra leading to the 2009 amendment, he submitted that the replacement of the initially proposed phrase “cooperate with the prosecution” in the proviso to Section 24(8) with “assist the prosecution” indicates a deliberate intention to have a limited role for the victim’s counsel. At the same time, acknowledging the reasons for ensuring greater participation of the victim in the prosecution, he submitted that the extent of the counsel’s assistance should be limited and subject to the permission of the Public Prosecutor. In this regard, he relied on the decision of the Tripura High Court in Uma Saha v. State of Tripura, 2014 SCC OnLine Tri 859 and submitted that in instances where an issue of importance is raised by the victim’s counsel, such as the Public Prosecutor failing to examine or cross­examine a witness properly, the victim’s counsel can suggest some questions to the Court, which may then pose them to the witness, if deemed necessary.

6. Heard learned Senior Counsel representing both the parties.

7. In light of the arguments advanced, the main question to be considered is the extent to which a victim’s counsel can participate in the prosecution of a case. Since this is closely tied with the role that is envisaged for the Public Prosecutor, we will first deal with the same.

8. In our criminal justice system, the Public Prosecutor occupies a position of great importance. Given that crimes are treated as a wrong against the society as a whole, his role in the administration of justice is crucial, as he is not just a representative of the aggrieved person, but that of the State at large. Though he is appointed by the Government, he is not a servant of the Government or the investigating agency. He is an officer of the Court and his primary duty is to assist the Court in arriving at the truth by putting forth all the relevant material on behalf of the prosecution. While discharging these duties, he must act in a manner that is fair to the Court, to the investigating agencies, as well to the accused. This means that in instances where he finds material indicating that the accused legitimately deserves a benefit during the trial, he must not conceal it. The space carved out for the Public Prosecutor is clearly that of an independent officer who secures the cause of justice and fair play in a criminal trial.

9. In light of this exposition, we find it useful to advert to certain provisions of the CrPC that highlight the role of a Public Prosecutor and the prerequisites for a person holding that office, most significant amongst which is Section 24:

“24. Public Prosecutors– (1) For every High Court, the Central Government or the State Government shall, after consultation with the High Court, appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors, for conducting in such Court, any prosecution, appeal or other proceeding on behalf of the Central Government or State Government, as the case may be…

(7) A person shall be eligible to be appointed as a Public Prosecutor or an Additional Public Prosecutor…

only if he has been in practice as an advocate for not less than seven years.

(8) The Central Government or the State Government may appoint, for the purpose of any case or class of cases, a person who has been in practice as an advocate for not less than ten years as a Special Public Prosecutor.

Provided that the Court may permit the victim to engage an advocate of his choice to assist the prosecution under this sub­section.”

(emphasis supplied)

Other important provisions are as follows:

“225. Trial to be conducted by Public Prosecutor– In every trial before a Court of Session, the prosecution shall be conducted by a Public

Prosecutor.

x x x

301. Appearance by Public Prosecutors– (1) The Public Prosecutor or Assistant Public Prosecutor in charge of a case may appear and plead without any written authority before any Court in which that case

is under inquiry, trial or appeal.

(2) If in any such case any private person instructs a pleader to prosecute any person in any Court, the Public Prosecutor or Assistant Public Prosecutor in charge of the case shall conduct the prosecution, and the pleader so instructed shall act therein under the directions of the Public Prosecutor or Assistant Public Prosecutor, and may, with the permission of the Court, submit written arguments after the evidence is closed in the case.

302. Permission to conduct prosecution– (1) Any Magistrate inquiring into or trying a case may permit the prosecution to be conducted by any person other than police officer below the rank of Inspector; but no person, other than the Advocate­General or Government Advocate or a Public Prosecutor or Assistant Public Prosecutor, shall be entitled to do so without such permission…

(2) Any person conducting the prosecution may do so personally or by a pleader.”

10. From a reading of these provisions, it is clear that a Public Prosecutor is entrusted with the responsibility of conducting the prosecution of a case. That this is a crucial role is evident from conditions such as in Section 24(7), which stipulates a minimum legal experience of seven years for a person to be eligible to be a Public Prosecutor. It is further clear from a joint reading of Section 301 and the proviso to Section 24(8) that the two provisions are mutually complementary. There is no bar on the victim engaging a private counsel to assist the prosecution, subject to the permission of the Court.

11. Contrary to the argument made by learned Senior Counsel for Respondent No. 1, we do not find that the use of the words “under this sub­section” in the proviso to Section 24(8) implies that a victim’s counsel can only be engaged to assist a Special Public Prosecutor. Such an interpretation would go against Section 301(2), which makes the pleader instructed by a private person subject to the directions of the Public Prosecutor or the Assistant Public Prosecutor.

In our considered opinion, a harmonious reading should be given to these provisions to give them full effect. Furthermore, credence should be given to the overall emphasis on victimology underlying the 2009 Amendment Bill, as reflected in its Statement of Objects and Reasons:

“Statement of Objects and Reasons.– The need to amend the Code of Criminal Procedure, 1973 to ensure fair and speedy justice and to tone up the criminal justice system has been felt for quite sometime. The Law Commission has undertaken a comprehensive review of the Code of Criminal Procedure in its 154th Report and its recommendations have been found very appropriate, particularly those relating to provisions concerning… victimology…

2. … At present victims are the worst sufferers in a crime and they don’t have much role in the Court proceedings. They need to be given certain rights and compensation so that there is no distortion of the criminal justice system.”

In view of this context and the provisions of the CrPC, there appears to be no justifiable basis for applying the provision only with respect to Special Public Prosecutors. Thus, we find that the assistance given by the victim’s counsel is meant to be given to the prosecution in general.

12. In light of this, we now proceed to consider the extent to which such assistance can be accorded. As mentioned supra, learned Senior Counsel for the Appellant has argued that there may be instances where the Public Prosecutor may fail to perform his functions properly, whether deliberately or due to oversight, which may obstruct justice instead of furthering it. To meet the ends of justice in such cases, he submitted that the role of the victim’s counsel should not be limited to filing of written arguments as provided with respect to pleaders engaged by private parties under Section 301(2). Instead, it should extend to making oral arguments and examining witnesses as well. On a perusal of the arguments advanced and the decisions relied on by both the parties, we find that such a broad mandate for the victim’s counsel cannot be given effect, as it is not rooted in the text of the Cr.PC.

12.1 The use of the term “assist” in the proviso to Section 24(8) is crucial, and implies that the victim’s counsel is only intended to have a secondary role qua the Public Prosecutor. This is supported by the fact that the original Amendment Bill to the CrPC had used the words “co­ordinate with the prosecution”. However, a change was later proposed and in the finally adopted version, the words “co­ordinate with” were substituted by “assist”. This change is reflective of an intention to only assign a supportive role to the victim’s counsel, which would also be in consonance with the limited role envisaged for pleaders instructed by private persons under Section 301(2). In our considered opinion, a mandate that allows the victim’s counsel to make oral arguments and cross­examine witnesses goes beyond a mere assistive role, and constitutes a parallel prosecution proceeding by itself. Given the primacy accorded to the Public Prosecutor in conducting a trial, as evident from Section 225 and Section 301(2), permitting such a free hand would go against the scheme envisaged under the CrPC.

12.2 In some instances, such a wide array of functions may also have adverse consequences on the fairness of a trial. For instance, there may be a case where the Public Prosecutor may make a strategic call to examine some witnesses and leave out others. If the victim’s counsel insists upon examining any of the left out witnesses, it is possible that the evidence so brought forth may weaken the prosecution case. If given a free hand, in some instances, the trial may even end up becoming a vindictive battle between the victim’s counsel and the accused, which may further impact the safeguards put in place for the accused in criminal trials. These lapses may be aggravated by a lack of advocacy experience on the part of the victim’s counsel. In contrast, such dangers would not arise in the case of a Public Prosecutor, who is required to have considerable experience in the practice of law, and act as an independent officer of the Court. Thus, it is important to appreciate why the role of a victim’s counsel is made subject to the instructions of the Public Prosecutor, who occupies a prime position by virtue of the increased responsibilities shouldered by him with respect to the conduct of a criminal trial.

12.3 At the same time, the realities of criminal prosecutions, as they are conducted today, cannot be ignored. There is no denying that Public Prosecutors are often overworked. In certain places, there may be a single Public Prosecutor conducting trials in over 2­3 courts. Thus, the possibility of them missing out on certain aspects of the case cannot be ignored or discounted. A victim­centric approach that allows for greater participation of the victim in the conduct of the trial can go a long way in plugging such gaps. To this extent, we agree with the submission made by the learned Senior Counsel for the Appellant that the introduction of the proviso to Section 24(8) acts as a safety valve, inasmuch as the victim’s counsel can make up for any oversights or deficiencies in the prosecution case. Further, to ensure that the right of appeal accorded to a victim under the proviso to Section 372 of the Cr.P.C. is not rendered meaningless due to the errors of the Public Prosecutor at the trial stage itself, we find that some significant role should be given to the victim’s counsel while assisting the prosecution. However, while doing so, the balance inherent in the scheme of the CrPC should not be tampered with, and the prime role accorded to the Public Prosecutor should not be diluted.

12.4 In this regard, given that the modalities of each case are different, we find that the extent of assistance and the manner of giving it would depend on the facts and circumstances of each case. Though we cannot detail and discuss all possible scenarios that may arise during a criminal prosecution, we find that a victim’s counsel should ordinarily not be given the right to make oral arguments or examine and cross­examine witnesses. As stated in Section 301(2), the private party’s pleader is subject to the directions of the Public Prosecutor. In our considered opinion, the same principle should apply to the victim’s counsel under the proviso to Section 24(8), as it adequately ensures that the interests of the victim are represented. If the victim’s counsel feels that a certain aspect has gone unaddressed in the examination of the witnesses or the arguments advanced by the Public Prosecutor, he may route any questions or points through the Public Prosecutor himself. This would not only preserve the paramount position of the Public Prosecutor under the scheme of the CrPC, but also ensure that there is no inconsistency between the case advanced by the Public Prosecutor and the victim’s counsel.

12.5 However, even if there is a situation where the Public Prosecutor fails to highlight some issue of importance despite it having been suggested by the victim’s counsel, the victim’s counsel may still not be given the unbridled mantle of making oral arguments or examining witnesses. This is because in such cases, he still has a recourse by channelling his questions or arguments through the Judge first. For instance, if the victim’s counsel finds that the Public Prosecutor has not examined a witness properly and not incorporated his suggestions either, he may bring certain questions to the notice of the Court. If the Judge finds merit in them, he may take action accordingly by invoking his powers under Section 311 of the CrPC or Section 165 of the Indian Evidence Act, 1872.

In this regard, we agree with the observations made by the Tripura High Court in Smt.Uma Saha v. State of Tripura (supra) that the victim’s counsel has a limited right of assisting the prosecution, which may extend to suggesting questions to the Court or the prosecution, but not putting them by himself.

13. In view of the foregoing discussion, we find that the High Court was correct in dismissing the application made by the Appellant seeking permission for her counsel to cross­examine witnesses after the Public Prosecutor. However, in future, if the Sessions Judge finds that the assistance of a private counsel is necessary for the victim, he may permit it keeping in mind the observations made supra. The instant appeal is dismissed accordingly.

J. (Mohan M. Shantanagoudar)

J. (Deepak Gupta)

New Delhi;

November 20, 2019.

Shiv Shankar Singh Vs State of Bihar and Another-22/11/2011

SUPREME COURT OF INDIA JUDGMENTS

Filing 2nd FIR in respect of the same incident having a different version of events is permissible: SC

Filing another FIR in respect of the same incident having a different version of events is permissible. (Vide: Ram Lal Narang v. State (Delhi Admn.), AIR 1979 SC 1791; Sudhir and Ors., v. State of M.P. AIR 2001 SC 826; T.T. Antony v. State of Kerala and Ors., AIR 2001 SC 2637; Upkar Singh v. Ved Prakash and Ors., AIR 2004 SC 4320; and Babubhai v. State of Gujarat and Ors., (2010) 12 SCC 254).

JT 2011 (13) SC 319 : (2011) 13 SCALE 75

SUPREME COURT OF INDIA

Shiv Shankar Singh Versus State of Bihar and Another

(Before : B.S. Chauhan and T.S. Thakur, JJ.)

Criminal Appeal No. 2160 of 2011 (Arising out of SLP (Crl.) No. 2768 of 2010) : Decided On: 22-11-2011

Criminal Procedure Code, 1973—Section 154—FIR—Law does not prohibit registration and investigation of two FIRs in respect of same incident in case versions are different—Test of sameness has to be applied otherwise there would not be cross cases and counter cases—Filing another FIR in respect of same incident having a different version of events is permissible.

Counsel for the Parties:

Gaurav Agrawal, Adv.

Awanish Sinha, Gopal Singh and Ravi Bhushan, Advs.

JUDGMENT

B.S. Chauhan, J—This appeal has been preferred against the judgment and order dated 6.5.2009 passed by the High Court of Judicature at Patna in Criminal Miscellaneous No. 36335 of 2008, by which the cognizance taken by the Magistrate vide order dated 2.8.2008 against the Respondent No. 2 under Section 395 of the Indian Penal Code, 1860 (hereinafter called `Indian Penal Code?) has been quashed.

2. Facts and circumstances giving rise to this case are that:

A. A dacoity was committed in the house of present Appellant Shivshankar Singh and his brother Kameshwar Singh on 6.12.2004 Where in Gopal Singh son of Kameshwar Singh was killed by the dacoits and lots of valuable properties were looted. The police reached the place of occurrence at about 3.00 AM i.e. about 2 hours after the occurrence. An FIR No. 147/2004 dated 6.12.2004 was lodged by the Appellant naming Ramakant Singh and An and Kumar Singh alongwith 15 other persons under Sections 396/398 Indian Penal Code.

B. However, Kameshwar Singh, the real brother of the Appellant and father of Gopal Singh, the deceased, approached the court by filing a case under Section 156(3) of the Code of Criminal Procedure, 1973, (hereinafter called `Code of Criminal Procedure.?). Appropriate orders were passed therein and in pursuance of which FIR No. 151/2004 was lodged on 29.12.2004 in respect of the same incident with the allegations that the present Appellant, Bhola Singh, son of the second complainant and Shankar Thakur, the maternal uncle of Bhola Singh had killed Gopal Singh as the accused wanted to grab the immovable property.

C. Investigation in pursuance of both the reports ensued. When the investigation in pursuance of both the FIRs was pending, the Appellant filed Protest Petition on 4.4.2005, but did not pursue the matter further. The court did not pass any order on the said petition. After completing investigation in the report dated 6.12.2004, the police filed final report under Section 173 Code of Criminal Procedure. on 9.4.2005 to the effect that the case was totally false and Gopal Singh had been killed for property disputes.

D. After investigating the other FIR filed by Kameshwar Singh, father of the deceased, charge-sheet was filed under Sections 302, 302/34, 506 Indian Penal Code etc. on 29.8.2005 against the Appellant, Bhola Singh, son of complainant and others. The matter stood concluded after trial in favour of the accused persons therein.

E. It was on 22.9.2005, the Appellant filed a second Protest Petition in respect of the final report dated 9.4.2005. After considering the same and examining a very large number of witnesses, the Magistrate took cognizance and issued summons to Respondent An and Kumar Singh and Ors. vide order dated 2.8.2008.

F. Being aggrieved, the Respondent An and Kumar Singh filed Criminal Miscellaneous No. 36335 of 2008 for quashing the order dated 2.8.2008 which has been allowed by the High Court on the ground that second Protest Petition was not maintainable and the Appellant ought to have pursued the first Protest Petition dated 4.4.2005.

Hence, this appeal.

3. Shri Gaurav Agrawal, learned Counsel appearing for the Appellant has submitted that the High Court failed to appreciate that the so-called first Protest Petition having been filed prior to filing the final report was not maintainable and just has to be ignored. The learned Magistrate rightly did not proceed on the basis of the said Protest Petition and it remained merely a document in the file. The second petition was the only Protest Petition which could be entertained as it had been filed subsequent to filing the final report. The High Court further committed an error observing that the Magistrate?s order of summoning the Respondent No. 1 was vague and it was not clear as in which Protest Petition the order had been passed. More so, the facts of the case in Joy Krishna Chakraborty and Ors. v. The State and Anr., 1980 Cri. L.J. 482, decided by the Division Bench of the Calcutta High Court and solely relied by the High Court were distinguishable as in the said case the first Protest Petition had been entertained by the Magistrate and an order had been passed. Protest Petition is to be treated as a complaint and the law does not prohibit filing and entertaining of second complaint even on the same facts in certain circumstances. Thus, the judgment and order impugned is liable to be set aside.

4. On the contrary, Shri Awanish Sinha and Shri Gopal Singh, Learned Counsel appearing for the Respondent have vehemently opposed the appeal contending that the second petition was not maintainable and the Appellant ought to have pursued the first Protest Petition. The High Court has rightly observed that the order of the Magistrate summoning the Respondent No. 1 and Ors. was totally vague. Even otherwise, as the Appellant himself had faced the criminal trial in respect of the same incident, he cannot be held to be a competent/eligible person to file the Protest Petition. He had purposely lodged the false FIR promptly after committing the offence himself. Therefore, the facts of the case do not warrant any interference by this Court and the appeal is liable to be dismissed.

5. We have considered the rival submissions made by the Learned Counsel for the parties and perused the record.

6. We do not find any force in the submission made on behalf of the Respondent that as in respect of same incident i.e. dacoity and murder of Gopal Singh, the Appellant himself along with others is facing criminal trial, proceedings cannot be initiated against the Respondent No. 1 at his behest as registration of two FIRs in respect of the same incident is not permissible in law, for the simple reason that law does not prohibit registration and investigation of two FIRs in respect of the same incident in case the versions are different. The test of sameness has to be applied otherwise there would not be cross cases and counter cases. Thus, filing another FIR in respect of the same incident having a different version of events is permissible. (Vide: Ram Lal Narang v. State (Delhi Admn.), AIR 1979 SC 1791; Sudhir and Ors., v. State of M.P. AIR 2001 SC 826; T.T. Antony v. State of Kerala and Ors., AIR 2001 SC 2637; Upkar Singh v. Ved Prakash and Ors., AIR 2004 SC 4320; and Babubhai v. State of Gujarat and Ors., (2010) 12 SCC 254).

7. Undoubtedly, the High Court has placed a very heavy reliance on the judgment of the Calcutta High Court in Joy Krishna Chakraborty and Ors. (supra), wherein the Protest Petition dated 19.3.1976 was entertained by the Magistrate issuing direction to the Officer-in-Charge of the Khanakul Police Station under Section 156(3) Code of Criminal Procedure. to make the investigation and submit the report to the court concerned by 10.4.1976. The Officer-in-Charge of the said police station did not carry out any investigation on the ground that the incident had occurred outside the territorial jurisdiction of the said police station. The second Protest Petition filed by the same complainant on 23.3.1976 was entertained by the learned Magistrate. In fact, it was in this factual backdrop that the Calcutta High Court held that the matter could have been proceeded with on the basis of the first Protest Petition itself by the Magistrate and second Protest Petition could not have been entertained.

8. The facts of the present case are completely distinguishable. Therefore, the ratio of the said judgment has no application in the facts of this case.

9. In Bhagwant Singh v. Commissioner of Police and Anr., AIR 1985 SC 1285, this Court dealt with an issue elaborately entertaining the writ petition and accepting the submission in regard to acceptance of the final report to the extent that if no case was made out by the Magistrate, it would be violative of principles of natural justice of the complainant and therefore before the Magistrate drops the proceedings the informant is required to be given hearing as the informant must know what is the result of the investigation initiated on the basis of first FIR. He is the person interested in the result of the investigation. Thus, in case the Magistrate takes a view that there is no sufficient ground for proceeding further and drops the proceedings, the informant would certainly be prejudiced and therefore, he has a right to be heard.

10. In Bindeshwari Prasad Singh v. Kali Singh, AIR 1977 SC 2432, this Court held that the second complaint lies if there are some new facts or even on the previous facts if the special case is made out.

Similarly, in Pramatha Nath Talukdar v. Saroj Ranjan Sarkar, AIR 1962 SC 876, this Court has held as under:

An order of dismissal under Section 203 of the Code of Criminal Procedure, is, however, no bar to the entertainment of a second complaint on the same facts but it will be entertained only in exceptional circumstances e.g. where the previous order was passed on an incomplete record or on a misunderstanding of the nature of the complaint or it was manifestly absurd, unjust or foolish or where new facts which could not, with reasonable diligence, have been brought on the record in the previous proceedings, have been adduced. It cannot be said to be in the interest of justice that after a decision has been given against the complainant upon a full consideration of his case, he or any other person should be given another opportunity to have his complaint enquired into.

11. After considering the aforesaid judgment along with various other judgments of this Court, in Mahesh Chand v. B. Janardhan Reddy and Anr., AIR 2003 SC 702, this Court held as under:

..It is settled law that there is no statutory bar in filing a second complaint on the same facts. In a case where a previous complaint is dismissed without assigning any reasons, the Magistrate under Section 204 Code of Criminal Procedure may take cognizance of an offence and issue process if there is sufficient ground for proceeding.

In Poonam Chand Jain and Anr. v. Fazru AIR 2005 SC 38, a similar view has been re-iterated by this Court.

12. In Jatinder Singh and Ors. v. Ranjit Kaur, AIR 2001 SC 784, this Court held that dismissal of a complaint on the ground of default was no bar for a fresh Complaint being filed on the same facts.

Similarly in Ranvir Singh v. State of Haryana, (2009) 9 SCC 642, this Court examined the issue in the backdrop of facts that the complaint had been dismissed for the failure of the complainant to put in the process fees for effecting service and held that in such a factsituation second complaint was maintainable.

13. Thus, it is evident that the law does not prohibit filing or entertaining of the second complaint even on the same facts provided the earlier complaint has been decided on the basis of insufficient material or the order has been passed without understanding the nature of the complaint or the complete facts could not be placed before the court or where the complainant came to know certain facts after disposal of the first complaint which could have tilted the balance in his favour. However, second complaint would not be maintainable wherein the earlier complaint has been disposed of on full consideration of the case of the complainant on merit.

14. The Protest Petition can always be treated as a complaint and proceeded with in terms of Chapter XV of Code of Criminal Procedure. Therefore, in case there is no bar to entertain a second complaint on the same facts, in exceptional circumstances, the second Protest Petition can also similarly be entertained only under exceptional circumstances. In case the first Protest Petition has been filed without furnishing the full facts/particulars necessary to decide the case, and prior to its entertainment by the court, a fresh Protest Petition is filed giving full details, we fail to understand as to why it should not be maintainable.

15. The instant case is required to be decided in the light of the aforesaid settled legal propositions.

Order dated 2.8.2008 passed by the Magistrate concerned is based on the depositions made by the Appellant-Shivshankar Singh, and a very large number of witnesses, namely, Sonu Kumar Singh, Suman Devi, Nirmala Devi, Ganesh Kumar, Udai Kumar Ravi, Ram Achal Singh, Jateshwar Acharya, Neeraj Kumar Singh, Krishna Devi and Dr. Narendra Kumar. More so, the record of the Sessions Trial No. 866 of 2005, wherein the Appellant himself has been put to trial was also summoned and examined by the learned Magistrate. Thus, the Magistrate further took note of the fact that for the same incident, trial was pending in another court. After appreciating the evidence of the complainant and other witnesses deposed in the enquiry, the learned Magistrate passed the following order:

On the basis of aforesaid discussion, I find that there are materials available on the record to proceed against the accused person. A prima-facie case under Section 395 Indian Penal Code has been made out against all the accused person of this case. O/c is directed to issue summons on filing of the requisite. Put up the record on 13.8.2008 for filing of the requisites.

16. The High Court without taking note of the aforesaid evidence set side the order of the Magistrate on a technical ground that the second Protest Petition was not maintainable without considering the fact that the first Protest Petition having been filed prior to filing of the final report was not competent. More so, the High Court without any justification made the following remarks:

The Court can only record that the learned Judicial Magistrate has not conducted himself in a fair manner because he has intentionally left the impugned order vague as to which protest petition he was acting upon, so that advantage may accrue to Opposite Party No. 2.

17. In our opinion, there was no occasion for the High Court to make such sweeping remarks against the Magistrate and the same remain unjustified and unwarranted in the facts and circumstances of the case.

18. In view of the above, the appeal succeeds and is allowed. The order impugned of the High Court is set aside and the order of the Magistrate is restored. Respondent No. 1 is directed to appear before the Magistrate on 1.12.2011 and the learned Magistrate is requested to proceed in accordance with law. However, we clarify that any observation made in this judgment shall not adversely prejudice the cause of the Respondent to seek any further relief permissible in law as the said observations have been made only to decide the controversy involved herein.

Police can not seize immovable property, but Title Deed U/S-102 Cr.P.C- SC

SUPREME COURT OF INDIA JUDGMENTS

The phrase ‘any property’ in Section 102 will only cover moveable property and not immovable property

As far as possession of the immovable property is concerned, specific provisions in the form of Sections 145 and 146 of the Code can be invoked as per and in accordance with law. Section 102 of the Code is not a general provision which enables and authorises the police officer to seize immovable property for being able to be produced in the Criminal Court during trial.

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Santosh Kumari Vs State of Jammu and Kashmir and Others -13/09/2011

SUPREME COURT OF INDIA JUDGMENTS

The object of the charge is to give the accused notice of the matter he is charged with and does not touch jurisdiction. If, therefore, the necessary information is conveyed to him in other ways and there is no prejudice, the framing of the charge is not invalidated. The essential part of this part of law is not any technical formula of words but the reality, whether the matter was explained to the accused and whether he understood what he was being tried for. Sections 34, 114 and 149 of the IPC provide for criminal liability viewed from different angles as regards actual participants, accessories and men actuated by a common object or a common intention; and as explained by five Judge Constitution Bench of this Court in Willie Slavey v. The State of M.P., (1955) 2 SCR 1140 at p. 1189, the charge is a rolled-up one involving the direct liability and the constructive liability without specifying who are directly liable and who are sought to be made constructively liable.

JT 2011 (10) SC 271 : (2011) 10 SCALE 379


(SUPREME COURT OF INDIA)

Santosh Kumari Vs State of Jammu and Kashmir and Others 

(Before : J.M. Panchal and H.L. Gokhle, JJ.)

Criminal Appeal Nos. 1660-1662 of 2011 (Arising out of S.L.P. (Criminal) Nos. 751-753 of 2011) : Decided On: 13-09-2011

Counsel for the Parties:

Nitin Sangra and Hemantika Wahi, Advs.

R.P. Bhatt, Sr. Adv., Bimal Roy Jad, Vikram Rathore, Sunil Fernandes, Suhaas Joshi, Astha Sharma and Yawar Masoodi, Advs.

JUDGMENT

J.M. Panchal, J—The Appellant is the widow of late Mr. Surinder Singh, who was murdered at about 9:00PM on June 28, 2007. Criminal Appeal No. 1660/2011 is directed against judgment dated October 20, 2010 rendered by the learned Single Judge of High Court of Jammu and Kashmir at Jammu in Criminal Revision No. 29 of 2008 by which the order dated March 24, 2008 passed by the learned Additional Sessions Judge, Kathua framing charges under Sections 302, 109, 147, 148 read with Section 149 of Ranbir Penal Code against Respondent Nos. 3 to 7 is set aside and the matter is remanded to the learned Judge, Samba to consider the case in terms of Sections 267, 268 and 269 of the Code of Criminal Procedure, 1989 (1933 A.D.) (as applicable in the State of Jammu and Kashmir). Criminal Appeal No. 1661 of 2011 is directed against order dated October 20, 2010 passed by the learned Single Judge of High Court of Jammu and Kashmir at Jammu in 561-A Code of Criminal Procedure No. 54 of 2009 by which prayer made by the Respondent of the present appeal to quash order dated March 24, 2008 passed by the learned Additional Sessions Judge, Kathua in a Criminal Challan being File No. 33 of 2007 titled as State v. Subhash Singh and Others framing charge against him for commission of offences under Sections 302, 109, 147, 148 read with 149 of Ranbir Penal Code, is allowed. Criminal Appeal No. 1662 of 2011 is directed against judgment dated October 20, 2010 passed by the learned Single Judge of High Court of Jammu and Kashmir at Jammu in Bail Application No. 26 of 2010 by which the Respondent Nos. 3 to 7 have been released on interim bail pending trial against the Respondents for above mentioned offences. As the three appeals arise out of common judgment and order dated October 20, 2010 rendered by the learned Single Judge of High Court of Jammu and Kashmir in Criminal Revision No. 29 of 2008, petition filed under Section 561-A Code of Criminal Procedure No. 54 of 2009 and Bail Application No. 26 of 2010, this Court proposes to dispose of them by this common judgment.

2. The case of the prosecution is that Respondent Nos. 3 to 8 in criminal appeal No. 1660 of 2011 formed a lawful assembly on 29-06-2007, common object of which was to murder Surinder Singh and in prosecution of the common object of the said assembly, Respondents Nos. 3 to 8 mounted a murderous assault on Surinder Singh, husband of the Appellant, at village Sanoora, District Samba (J & K). The injured was immediately shifted to hospital for treatment. On the basis of the information given by the Appellant, FIR No. 113/2007 under Section 307 read with 109 of Ranbir Penal Code was registered at police station Hiranagar, in connection with the aforesaid incident on June 29, 2007. On July 2, 2007 injured Surinder Singh succumbed to his injuries in Military Hospital, Satwari, and Jammu and, therefore, offence punishable under Section 302 of Ranbir Penal Code was added. On the basis of FIR lodged by the Appellant, investigation was undertaken. During the course of investigation statement of the Appellant and other witnesses were recorded under Section 164 of the Code of Criminal Procedure 1989. The dead body of the deceased was sent for postmortem examination. After completion of the investigation, the investigating agency had filed charge sheet in the Court of learned Magistrate for offences punishable under Sections 302, 109, 147, 148, 149 of the Ranbir Penal Code. As the offence punishable under Section 302 is triable exclusively by a Court of Sessions, the case was committed to Sessions Court for trial. The learned Additional Sessions Judge, after hearing the prosecution and the accused on the question of framing charge, framed necessary charge on March 24, 2008 against each accused for the offences punishable under Sections 302, 109, 147, 148, 149 of Ranbir Penal Code.

3. Feeling aggrieved by the framing of above mentioned charges by the trial court on March 24, 2008, the Respondent Nos. 3 to 7 in Criminal Appeal No. 1660 of 2011 preferred Criminal Revision No. 29 of 2008 before the High Court. The High Court by order dated June 6, 2008 issued notice and summoned the record of the case from the trial court. On March 20, 2009, the Respondent No. 8, who is original accused No. 6, preferred a petition No. 54 of 2009 under Section 561-A of the Code of Criminal Procedure to quash order dated March 24, 2008 passed by the trial court framing charges against him for commission of offences punishable under Sections 302, 109, 147, 148 read with 149 of the Ranbir Penal Code. During the pendency of above numbered petitions, the High Court by order dated August 13, 2009 sent back the record to the trial court and granted liberty to the Respondent Nos. 3 to 8 to seek bail from the trial court. When the above numbered Revision and the petition filed under Section 561-A were pending disposal before the High Court, the prosecution examined three eyewitnesses to the occurrence viz. (1) Santosh Kumari, i.e., the Appellant herein, (2) Surishta Devi and (3) Shakti Devi. It may be stated that the Appellant and the Shakti Devi have fully supported the case of the prosecution.

Pursuant to the liberty granted by the High Court vide order dated August 13, 2009, the Respondent Nos. 3 to 8 applied for bail before the trial court. The trial court rejected Bail Application filed by the accused vide order dated February 19, 2010. The record of the case indicates that except accused Iqram, who is Respondent No. 8 in Criminal Appeal No. 1660 of 2011, all the other accused filed Bail Application No. 26 of 2010 before the High Court claiming bail. The High Court by order dated August 10, 2010 directed the learned Counsel for the accused to place on record the deposition of the witnesses recorded by the trial court. On August 13, 2010, Raman Singh, brother of accused Subash Singh, who is Respondent No. 3 in the main appeal, physically assaulted and threatened the son of the Appellant as well as one Kuljit Singh who is one of the witnesses in the case, allegedly in the court premises itself, to refrain them from deposing against the accused in the case. They were also warned that if they gave depositions against the accused they would be killed. Because of the assault mounted by brother of the accused, son of the Appellant has lodged FIR No. 183/2010 under Sections 341, 195-A, 504, 506 of Ranbir Penal Code at Police Station Samba. With reference to above mentioned FIR statement of the son of the Appellant was recorded under Section 164 Code of Criminal Procedure on August 20, 2010.

On September 8, 2010 and October 7, 2010 the prosecution examined two more eye witnesses, i.e., (1) Raksha Devi and (2) Kamlesh Devi who had supported the prosecution case.

4. The High Court by order dated October 20, 2010 has set aside the order dated March 24, 2008 passed by the trial court framing charge against the Respondent Nos. 3 to 8 and has remanded the case to the trial court to consider it in terms of Sections 267, 268 and 269 of the Code of Criminal Procedure 1989. By the said order the High Court has directed release of all the accused persons except accused Subhash, who is Respondent No. 3 in the main appeal, pending consideration of the prosecution case for framing charge by the trial court. The above mentioned order dated October 20, 2010 of the High Court has given rise to the three instant appeals.

5. This Court has heard the learned Counsel for the parties and have considered the documents forming part of the appeals.

6. The provisions relating to framing of charge against the accused before the trial commences, are contained in the Code of Criminal Procedure 1989 (1933 A.D.) which is applicable to the State of Jammu and Kashmir. The statute requires that every charge framed under the said code should state the offence with which the accused is charged and if the law which creates the offence gives it any specific name, the offence should also be described in the charge by that name only. The statute further requires that the law and section of the law against which the offence is said to have been committed has to be mentioned in the charge. It is a fundamental principle of criminal law that the accused should be informed with certainty and accuracy the exact nature of the charge brought against him. The object of the statement of particulars to be mentioned in the charge is to enable the accused person to know the substantive charge, he will have to meet and to be ready for it before the evidence is given. The extent of the particulars necessary to be given in the charge depends upon the facts and the circumstances of each case. It is well-settled law that in drawing up a charge, all verbiage should be avoided. However, a charge should be precise in its scope and particular in its details. The charge has to contain such particulars as to the time and place of the alleged offence and the person against whom it was committed as are reasonably sufficient to give the accused notice of the matter with which he is charged. One of the requirements of law is that when the nature of the case is such that the particulars mentioned in the charge do not give the accused sufficient notice of the matter with which he is charged, the charge should contain such particulars of the manner in which alleged offence was committed as would be sufficient for that purpose. If ‘A’ is accused of the murder of ‘B’ at a given time and place, the charge need not state the manner in which ‘A’ murdered ‘B’.

7. Like all procedural laws, the Code of Criminal Procedure is devised to sub serve the ends of justice and not to frustrate them by mere technicalities. It regards some of its provisions as vital but others not, and a breach of the latter is a curable irregularity unless the accused is prejudiced thereby. It places errors in the charge, or even a total absence of a charge in the curable class. That is why we have provisions like Sections 215 and 464 in the Code of Criminal Procedure, 1973.

The object of the charge is to give the accused notice of the matter he is charged with and does not touch jurisdiction. If, therefore, the necessary information is conveyed to him in other ways and there is no prejudice, the framing of the charge is not invalidated. The essential part of this part of law is not any technical formula of words but the reality, whether the matter was explained to the accused and whether he understood what he was being tried for. Sections 34, 114 and 149 of the IPC provide for criminal liability viewed from different angles as regards actual participants, accessories and men actuated by a common object or a common intention; and as explained by five Judge Constitution Bench of this Court in Willie Slavey v. The State of M.P., (1955) 2 SCR 1140 at p. 1189, the charge is a rolled-up one involving the direct liability and the constructive liability without specifying who are directly liable and who are sought to be made constructively liable.

In the light of above principles, the question whether proper charge was framed against the Respondent Nos. 3 to 8, will have to be viewed.

8. In the present case, what was argued on behalf of the Respondent Nos. 3 to 8 before the High Court was that the charge was invalid because there was no mention in the order of the trial court indicating the specific offence found to have been prima facie committed by one or the other accused individually or jointly nor there was any indication regarding the specific names of the offences sufficient for description in the order of framing charge, but only sections of the law against which the offences were found to have been committed were mentioned.

The High Court has held that mere mention of the sections of the law in the order framing the charge would not, serve the purpose of law, as it was likely to prejudice the accused in his trial, and that, the accused would be disabled to know the exact Charge he had to face. In view of the above mentioned conclusion, the High Court has set aside the order dated March 24, 2008 framing charge against the accused and has remanded the matter to the trial court to consider the case in terms of Sections 267, 268 and 269 of the Code of Criminal Procedure 1989 which are pari materia to Sections 226, 227 and 228 of the Code of Criminal Procedure 1973.

9. In order to ascertain whether the Charge framed against Respondent was proper or not, this Court proposes to reproduce order dated March 24, 2008 framing charge against Rajesh Singh son of Jagdish Singh, resident of Sanoora, tehsil Hiranagar, which reads as under:

IN THE COURT OF ADDL. SESSIONS JUDGE

KATHUA

I, Vinod Chatterji Koul hereby charge you, Rajesh Singh S/o Jagdish Singh R/o Sanoora, tehsil Hiranagar as under:

1. That on 28.6.07 at Sanoora at about 9.30 pm with criminal intention along with other accused persons, having common criminal object armed with lathies (sticks) committed rioting and in that attacked deceased Surinder Singh with an intention to murder him attacked and injured him seriously, who thereafter on 2nd July 2007 during treatment succumbed to his injuries at Medical College Jammu, and you thereby committed offence punishable Under Section 302/109/147/148/149 of the Ranbir Penal Code and within the cognizance of this Court.

2. And I hereby direct you be tried by this Court on the said charge.

Dated 24.3.08

Sd.

Statement of accused dated 24th March 2008 Rajesh Singh S/o Jagdish Singh R/o Sanoora, tehsil Hiranagar Caste rajput, employee by profession aged?

Question: Whether you have understood the contents of the charge which has been read over and explained to you?

Answer: Yes

Question: Whether you have committed the offence?

Answer: No.

Question: Whether you want to say anything more?

Answer: I am innocent and want trial of the case.

Sd.

It may be mentioned that similar charge has been framed against each accused by order dated March 24, 2008.

A fair and reasonable reading of the above quoted order dated March 24, 2008 makes it abundantly clear that accused Rajesh Singh on June 28, 2007 at Sanoora about about 9.30 pm with criminal intention along with other accused, having common object armed with lathies (sticks) committed rioting. Thus, the charge contains particulars as to the time, place and date of the offence of rioting. The law which creates the offence gives it specific name, i.e., “rioting” and, therefore, the offence is described in the charge by that name, namely, “rioting”. The charge further proceeds to state that while committing rioting accused Rajesh Singh and other assaulted deceased Surinder Singh with an intention to murder him and injured him seriously. Thus the name of person with reference to whom common criminal object was formed by the members of the unlawful assembly was stated. It was also stated in the Charge that during the treatment injured Surinder Singh had succumbed to his injuries on July 2, 2007 at Medical College, Jammu. Thus the date on which the deceased succumbed to this injuries and the place where the deceased succumbed to his injuries were mentioned with precision. Finally in the Charge, it was mentioned that accused Rajesh Singh had committed offences punishable under Sections 302, 109, 147, 148, 149 of the Ranbir Penal code. After framing Charge immediately the plea of accused Rajesh was recorded. The first question which asked to him was whether he had understood the contents of the Charge which was read and explained to him. In answer to the said question accused Rajesh Singh had answered in affirmative. The record shows that thereafter two questions were put to accused Rajesh Singh in answer to which he had claimed that he was innocent and had wished to be tried.

10. This is not a case of mere mention of the sections of the law in the charge or the order of framing charge. Therefore, the High Court was not justified in observing that mere mention of the sections of the law in the charge was likely to prejudice the accused in his trial and that he would be disabled to know the exact charge he had to face, nor the High court was justified in observing that the trial court was not alive to the provisions of Chapter XIX of the Code of Criminal Procedure. It is necessary to reproduce part of the order passed by the trial court which is relied upon by the High Court for the purpose of coming to the conclusion that mere mention of the sections of the law in the charge or the order framing charge, would not serve the purpose of the law. The said order reads as under:

Upon consideration of the arguments of the learned Public Prosecutor, the learned Counsel for the accused and the written arguments besides the judgments cited and also the statements of the witnesses recorded by the police and other connected documents on the file, I am of the considered opinion that there are reasonable grounds to presume that accused Subash Singh S/o Krishen Singh, Rajesh Singh S/o Jagdish Singh, Vijay Singh S/o Krishen Singh, Ranjit Singh S/o Baldev Singh, Rakesh Singh S/o Jagdish Singh and Ikram Singh S/o Neter Singh caste Rajput residents of Sonoora Tehsil Hiranagar have prima facie committed offences punishable under Sections 302/109/147/148 and 149 IPC. Offence punishable under Section 302 IPC is exclusively triable by the court of sessions.

Charges under Sections 302/109/147/148 and 149 IPC is framed against accused Subash Singh, Rajesh Singh, Vijay Singh, Ranjit Singh, Rakesh Singh and Ikram Singh. The contents of the charges framed have been read over and explained to the accused persons who have pleaded not guilty to the said changes and have claimed to be tried.

11. A glance at the order quoted above would reveal that at the stage of framing charge the learned Counsel for the accused had pleaded for discharge of the accused under the relevant provisions of the Code of Criminal Procedure 1989. Not only the learned Counsel for the accused had advanced oral arguments, but he had also submitted written arguments and cited judgments as well as statements of the witnesses recorded by the police and relied upon other connected documents on the file to emphasize that the accused should be discharged. The order of the trial court which is quoted by the High Court in the impugned judgment is not the order framing charge at all. It is a short order indicating that no case was made out by the learned Counsel for the accused for discharging the accused at the stage of framing charge and that the accused should be tried for the offences which were mentioned in the order of framing charge separately against each accused.

12. On the facts and in the circumstances of the case, this Court is of the opinion that a patent error of law apparent on the fact of the record was committed by the High Court in coming to the conclusion that in the order of framing charge there was mere mention of the sections of the law which was likely to prejudice the accused in his trial, as the accused would be disabled to know the exact charge he had to face. Having noticed the charge which was separately framed against each accused, the inevitable conclusion to be reached by this Court is that the High Court erred in law in holding that it was obligatory for the trial court to have indicated in its order and the charge sheet the description of the offences for which one or the other accused had to be tried because all necessary particulars which should be stated as required by law were already stated by the learned Judge of trial court while framing charge.

Further the fact that trial against the accused has/had made considerable progress in as much as material evidence of the eye witnesses to the occurrences was recorded by the trial court could not have been ignored while deciding the question whether proper charge against each accused was framed or not. The nature of charge to be faced was clearly understood by each accused which is evident from the plea recorded by the trial court after framing necessary charge that the nature of charge was very well understood by each accused. The fact is also evident from the averments made in the Revision Petition which was filed by the accused challenging order framing charge. The fact that charge was clearly understood by each accused is also evident from the nature of cross-examination of the eye witnesses made on their behalf by their learned Counsel. In view of the fact that all the eye witnesses have been examined and cross-examined on behalf of the accused, the High Court should have resorted to the provisions of Section 225 of the Code of Criminal Procedure, 1989 as applicable to the State of Jammu and Kashmir which reads as under:

225. Effect of errors: No error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned failure of justice.

The cross-examination of the eye witnesses on behalf of the accused would indicate that none of the accused was in fact misled by so-called error pointed out by the High Court nor it could be successfully pointed out by any of them that so-called error has occasioned failure of justice to him. The remand of the case to trial court for considering the case afresh on the point of charge was not warranted at all, as there is nothing to suggest or indicate even remotely that the accused had or would have been misled by any error or omission in the Charge. Therefore, the order dated October 20, 2010 rendered in Criminal Revision No. 29 of 2008 deserves to be set aside. For the similar reasons the order dated October 20, 2010 passed by the High Court in petition filed under Section 561-A Code of Criminal Procedure No. 54 of 2009 allowing the prayer made by the Respondent No. 8 to quash the order dated March 24, 2008 will have to be set aside.

13. It may be mentioned that the order admitting the accused except accused Sub hash Singh to interim bail of ` 25,000/- each to the satisfaction of the trial court pending consideration of the prosecution case afresh on question of charge, was not warranted nor justified at all. Before granting interim bail to the accused the High Court could not have afforded to ignore the testimony of eye witnesses including that of the Appellant who is wife of the deceased, merely because deceased had received only one injury nor the accused could have been accorded the benefit of temporary bail on the spacious plea that they were facing trial over a period of three years. The record of the case nowhere shows that the prosecution was responsible in any manner at all for so called delay in holding trial against the accused. The fact that accused are involved in commission of a heinous crime like murder which entails death or life imprisonment as punishment should have been taken into consideration before releasing the accused on interim bail. The trial court after having considered the gravity of the offence and the apprehension on the part of the prosecution that the accused would tamper with the evidence in the event of their release on bail had rightly refused to enlarge the accused on bail. The High Court while granting the relief of bail to the accused has completely ignored and over looked the aforementioned relevant factors which weigh heavily against the accused. Moreover, the complaint filed by Vijinder Singh that he and Kuljit singh, who is one of the witnesses in the present case, were physically assaulted and threatened in the Court premises will have to be given its due weight. The FIR registered on August 13, 2010 is pending necessary investigation wherein the statement of Vijinder Singh who is son of the Appellant was recorded on August 20, 2010 under Section 164 Criminal Procedure Code. The contents of the FIR would indicate that the accused either themselves or through their relatives would try to tamper the evidence which is going to be led by the prosecution in the case.

14. Under the Circumstances, this Court is of the opinion that release of the accused except accused Subhash Singh on interim bail deserves to be set aside. The net result of the above discussion is that all the three appeals will have to be allowed.

For the foregoing reasons the three appeals succeed. Order dated October 20, 2010 rendered by the High Court of Jammu and Kashmir at Jammu in Criminal Revision No. 29 of 2008 is hereby set aside. Similarly the order dated October 20, 2010 passed by the High Court in petition filed under Section 561-A Code of Criminal Procedure No. 54 of 2009 is also set aside. The order dated October 20, 2010 passed in Bail Application No. 26 of 2010 by which the accused except accused Subhash Singh are enlarged on interim bail is also set aside. Accused Subhash Singh is already in custody. Therefore, it is directed that the other accused shall be taken in custody immediately.

Having regard to the facts of the case and more particularly the fact that the trial has already commenced, the trial court is directed to complete the trial as early as possible and preferably within 9 months from the date of receipt of writ from this Court. Subject to above-mentioned directions, all the three appeals stand disposed of.


 

 

P. CHIDAMBARAM VS DIRECTORATE OF ENFORCEMENT – 5/9/2019

SUPREME COURT OF INDIA JUDGMENTS

Grant of anticipatory bail at the stage of investigation may frustrate the investigating agency in interrogating the accused and in collecting the useful information and also the materials which might have been concealed. Success in such interrogation would elude if the accused knows that he is protected by the order of the court. Grant of anticipatory bail, particularly in economic offences would definitely hamper the effective investigation.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1340 2019

(Arising out of SLP(Crl.) No.7523 of 2019)

P. CHIDAMBARAM VS DIRECTORATE OF ENFORCEMENT

JUDGMENT

R. BANUMATHI, J.

1. Leave granted.

2. This appeal relates to the alleged irregularities in Foreign Investment Promotion Board (FIPB) clearance given to the INX Media for receiving foreign investment to the tune of Rs.305 crores against approved inflow of Rs.4.62 crores. The High Court of Delhi rejected the appellant’s plea for anticipatory bail in the case registered by Central Bureau of Investigation (CBI) being RC No.220/2017-E-0011 under Section 120B IPC read with the Prevention of Corruption Act, 1988. By the impugned order dated 20.08.2019, the High Court also refused to grant anticipatory bail in the case registered by the Enforcement Directorate in ECIR No.07/HIU/2017 punishable under Sections 3 and 4 of the Prevention of Money-Laundering Act, 2002.

3. Grievance of the appellant is that against the impugned order of the High Court, the appellant tried to get the matter listed in the Supreme Court on 21.08.2019; but the appellant could not get an urgent hearing in the Supreme Court seeking stay of the impugned order of the High Court. The appellant was arrested by the CBI on the night of 21.08.2019. Since the appellant was arrested and remanded to custody in CBI case, in view of the judgment of the Constitution Bench in Shri Gurbaksh Singh Sibbia and others v. State of Punjab (1980) 2 SCC 565, the appellant cannot seek anticipatory bail after he is arrested. Accordingly, SLP(Crl.) No.7525 of 2019 preferred by the appellant qua the CBI case was dismissed as infructuous vide order dated 26.08.2019 on the ground that the appellant has already been arrested and remanded to custody. This Court granted liberty to the appellant to work out his remedy in accordance with law.

4. On 15.05.2017, CBI registered FIR in RC No.220/2017-E-0011 under Section 120B IPC read with Section 420 IPC, Section 8 and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 against the accused viz. (i) INX Media through its Director Indrani Mukherjea; (ii) INX News through its Director Sh. Pratim Mukherjea @ Peter Mukherjea and others; (iii) Sh. Karti P. Chidambaram; (iv) Chess Management Services through its Director Sh. Karti P. Chidambaram and others; (v) Advantage Strategic Consulting through its Director Ms. Padma Vishwanathan @ Padma Bhaskararaman and others; (vi) unknown officers/officials of Ministry of Finance, Govt. of India; and (vii) other unknown persons for the alleged irregularities in giving FIPB’s clearance to INX Media to receive overseas funds of Rs.305 crores against approved Foreign Direct Investment (FDI) of Rs.4.62 crores.

5. Case of the prosecution in the predicate offence is that in 2007, INX Media Pvt. Ltd. approached Foreign Investment Promotion Board (FIPB) seeking approval for FDI upto 46.216 per cent of the issued equity capital. While sending the proposal by INX Media to be placed before the FIPB, INX Media had clearly mentioned in it the inflow of FDI to the extent of Rs.4,62,16,000/- taking the proposed issue at its face value. The FIPB in its meeting held on 18.05.2007 recommended the proposal of INX Media subject to the approval of the Finance Minister-the appellant. In the meeting, the Board did not approve the downstream investment by INX Media in INX News. In violation of the conditions of the approval, the recommendation of FIPB:- (i) INX Media deliberately made a downstream investment to the extent of 26% in the capital of INX News Ltd. without specific approval of FIPB which included indirect foreign investment by the same Foreign Investors; (ii) generated more than Rs.305 crores FDI in INX Media which is in clear violation of the approved foreign flow of Rs.4.62 crores by issuing shares to the foreign investors at a premium of more than Rs.800/- per share.

6. Upon receipt of a complaint on the basis of a cheque for an amount of Rs.10,00,000/- made in favour of M/s Advantage Strategic Consulting Private Limited (ASCPL) by INX Media, the investigation wing of the Income Tax Department proceeded to investigate the matter and the relevant information was sought from the FIPB, which in turn, vide its letter dated 26.05.2008 sought clarification from the INX Media which justified its action saying that the downstream investment has been authorised and that the same was made in accordance with the approval of FIPB. It is alleged by the prosecution that in order to get out of the situation without any penal provision, INX Media entered into a criminal conspiracy with Sh. Karti Chidambaram, Promoter Director, Chess Management Services Pvt. Ltd. and the appellant-the then Finance Minister of India. INX Media through the letter dated 26.06.2008 tried to justify their action stating that the downstream investment has been approved and the same was made in accordance with approval.

7. The FIR further alleges that for the services rendered by Sh. Karti

Chidambaram to INX Media through Chess Management Services in getting the issues scuttled by influencing the public servants of FIPB unit of the Ministry of Finance, consideration in the form of payments were received against invoices raised on INX Media by ASCPL. It is alleged in the FIR that the very reason for getting the invoices raised in the name of ASCPL for the services rendered by Chess Management Services was with a view to conceal the identity of Sh. Karti Chidambaram inasmuch as on the day when the invoices were raised and payment was received. It is stated that Sh. Karti Chidambaram was the Promoter, Director of Chess Management Services whereas ASCPL was being controlled by him indirectly. It is alleged that the invoices approximately for an amount of Rs.3.50 crores were falsely got raised in favour of INX Media in the name of other companies in which Sh. Karti Chidambaram was having sustainable interest either directly or indirectly. It is alleged that such invoices were falsely got raised for creation of acquisition of media content, consultancy in respect of market research, acquisition of content of various genre of Audio-Video etc. It is alleged that INX Media Group in his record has clearly mentioned the purpose of payment of Rs.10,00,000/- to ASCPL as towards “management consultancy charges towards FIPB notification and clarification”. Alleging that the above acts of omission and commission prima facie disclose commission of offence, CBI has registered FIR in RC No.220/2017-E-0011 on 15.05.2017 under Section 120B read with Section

420 IPC, Section 8 and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 against the aforesaid accused.

8. On the basis of the said FIR registered by CBI, the Enforcement Directorate registered a case in ECIR No.07/HIU/2017 against the aforesaid accused persons for allegedly committing the offence punishable under Sections 3 and 4 of the Prevention of Money-Laundering Act, 2002 (PMLA). Ever since the registration of the cases in 2017, there were various proceedings seeking bail and number of other proceedings pending filed by Sh. Karti Chidambaram and other accused. Finally, the Delhi High Court granted bail to Sh. Karti Chidambaram in INX Media case filed by CBI on 23.03.2018. Thereafter, the appellant moved Delhi High Court seeking anticipatory bail both in CBI case and also in money-laundering case filed by Enforcement Directorate. On 25.07.2018, the Delhi High Court granted the appellant interim protection from arrest in both the cases and the same was extended till 20.08.2019 – the date on which the High Court dismissed the appellant’s petition refusing to grant anticipatory bail.

9. The High Court dismissed the application refusing to grant anticipatory bail to the appellant by holding that “it is a classic case of money-laundering”. The High Court observed that “it is a clear case of money-laundering”. The learned Single Judge dismissed the application for anticipatory bail by holding “that the alleged irregularities committed by the appellant makes out a prima facie case for refusing pre-arrest bail to the appellant”. The learned Single Judge also held that “considering the gravity of the offence and the evasive reply given by the appellant to the questions put to him while he was under the protective cover extended to him by the court are the twin factors which weigh to deny the pre-arrest bail to the appellant”. Being aggrieved, the appellant has preferred this appeal.

10. Lengthy arguments were heard on number of hearings stretched over for long time. Learned Senior counsel appearing for the appellant Mr. Kapil Sibal and Mr. Abhishek Manu Singhvi made meticulous submissions on the concept of life and liberty enshrined in Article 21 of the Constitution of India to urge that the appellant is entitled to the privilege of anticipatory bail. Arguments were also advanced on various aspects – whether the court can look into the materials produced by the respondent-Enforcement Directorate to seek custody of the appellant when the appellant was not confronted with those documents on the three dates of interrogation of the appellant conducted on 19.12.2018, 01.01.2019 and 21.01.2019. Interlocutory application was filed by the appellant to produce the transcripts of the questions put to the appellant and the answers given by the appellant, recorded by Enforcement Directorate. Countering the above submissions, Mr. Tushar Mehta, learned Solicitor General made the submissions that grant of anticipatory bail is not part of Article 21 of the Constitution of India. Mr. Tushar Mehta urged that having regard to the materials collected by the respondent-Enforcement Directorate and the specific inputs and in view of the provisions of the special enactment-PMLA, custodial interrogation of the appellant is required and the appellant is not entitled to the privilege of anticipatory bail.

Contention of Mr. Kapil Sibal, learned Senior counsel:-

11. Mr. Kapil Sibal, learned Senior counsel appearing on behalf of the appellant submitted that the clearance for INX FDI was approved by Foreign Investment Promotion Board (FIPB) consisting of six Secretaries and the appellant as the then Finance Minister granted approval in the normal course of official business. The learned Senior counsel submitted that the crux of the allegation is that the appellant’s son Sh. Karti Chidambaram tried to influence the officials of FIPB for granting ex-post facto approval for downstream investment by INX Media to INX News; whereas neither the Board members of FIPB nor the officials of FIPB have stated anything about the appellant’s son Sh. Karti Chidambaram that he approached and influenced them for ex-post facto approval. The learned Senior counsel contended that the entire case alleges about money paid to ASCPL and Sh. Karti Chidambaram is neither the share-holder nor a Director in the said ASCPL; but the Enforcement Directorate has falsely alleged that Sh. Karti Chidambaram has been controlling the company-

ASCPL. It was submitted that the appellant has nothing to do with the said ASCPL to whom money has been paid by INX Media.

12. Taking us through the impugned judgment and the note said to have been submitted by the Enforcement Directorate before the High Court, the learned Senior counsel submitted that the learned Single Judge has “copied and pasted” paragraphs after paragraphs of the note given by the respondent in the court. It was urged that there was no basis for the allegations contained in the said note to substantiate the alleged transactions/transfer of money as stated in the tabular column given in the impugned order.

13. So far as the sealed cover containing the materials sought to be handed over by the Enforcement Directorate, the learned Senior counsel raised strong objections and submitted that the Enforcement Directorate cannot randomly produce the documents in the court “behind the back” of the appellant for seeking custody of the appellant. Strong objections were raised for the plea of Enforcement Directorate requesting the court to receive the sealed cover and for looking into the documents/material collected during the investigation allegedly showing the trail of money in the name of companies and the money-laundering.

14. The appellant was interrogated by the respondent on three dates viz. 19.12.2018, 01.01.2019 and 21.01.2019. So far as the observation of the

High Court that the appellant was “evasive” during interrogation, the learned Senior counsel submitted that the appellant has well cooperated with the respondent and the respondent cannot allege that the appellant was “non-cooperative”. On behalf of the appellant, an application has also been filed seeking direction to the respondent to produce the transcripts of the questioning conducted on 19.12.2018, 01.01.2019 and 21.01.2019. The learned Senior counsel submitted that the transcripts will show whether the appellant was “evasive” or not during his questioning as alleged by the respondent.

15. Learned Senior counsel submitted that the provision for anticipatory bail i.e. Section 438 Cr.P.C. has to be interpreted in a fair and reasonable manner and while so, the High Court has mechanically rejected the anticipatory bail. It was further submitted that in case of offences of the nature alleged, everything is borne out by the records and there is no question of the appellant being “evasive”. The learned Senior counsel also submitted that co-accused Sh. Karti Chidambaram and Padma Bhaskararaman were granted bail and the other accused Indrani Mukherjea and Sh. Pratim Mukherjea @ Peter Mukherjea are on statutory bail and the appellant is entitled to bail on parity also.

Contention of Mr. Abhishek Manu Singhvi, learned Senior counsel:-

16. Reiterating the submission of Mr. Kapil Sibal, Mr. Abhishek Manu Singhvi, learned Senior counsel submitted that the Enforcement Directorate cannot say that the appellant was “non-cooperative” and “evasive”. Mr. Singhvi also urged for production of transcripts i.e. questions put to the appellant and the answers which would show whether the appellant has properly responded to the questions or not. Placing reliance upon Additional District Magistrate, Jabalpur v. Shivakant Shukla (1976) 2 SCC 521, the learned Senior counsel submitted that the respondent cannot rely upon the documents without furnishing those documents to the appellant or without questioning the appellant about the materials collected during the investigation. Reiterating the submission of Mr. Sibal, Mr. Singhvi contended that the High Court has denied anticipatory bail to the appellant on the basis of materials produced by the respondent in the cover before the court which were never shown to the appellant nor was the appellant confronted with the same. The learned Senior counsel submitted that the alleged occurrence was of the year 2007-08 and Sections 420 IPC and 120B IPC and Section 13 of the Prevention of Corruption Act were not part of the “scheduled offence” of Prevention of Money-Laundering Act in 2008 and were introduced by a notification dated 01.06.2009 and in view of the protection given under Article 20(1) of the Constitution of India, there can never be a retrospective operation of a criminal/penal statute. Placing reliance upon Rao Shiv Bahadur Singh and another v. State of Vindhya Pradesh AIR 1953 SC 394, it was contended that the appellant has to substantiate the contention that the acts charged as offences were offences “at the time of commission of the offence”. The learned Senior counsel urged that in 2007-2008 when the alleged acts of commission and omission were committed, they were not “scheduled offences” and hence prosecution under Prevention of Money-Laundering Act, 2002 is not maintainable.

17. The learned Senior counsel has taken strong exception to the two factors stated by the High Court in the impugned order for denying pre-arrest bail i.e. (i) gravity of the offence; and (ii) the appellant was “evasive” to deny the anticipatory bail. The learned Senior counsel submitted that the “gravity of the offence” cannot be the perception of the individual or the court and the test for “gravity of the offence” should be the punishment prescribed by the statute for the offence committed. Insofar as the finding of the High Court that “the appellant was evasive to the questions”, the learned Senior counsel submitted that the investigating agency-Enforcement Directorate cannot expect an accused to give answers in the manner they want and that the accused is entitled to protection under Article 20(3) of the Constitution of India. Reliance was placed upon Santosh s/o Dwarkadas Fafat v. State of Maharashtra (2017) 9 SCC 714.

Contention of Mr. Tushar Mehta, learned Solicitor General:-

18. Taking us through the Statement of Objects and Reasons and salient features of the PMLA, the learned Solicitor General submitted that India is a part of the global community having responsibility to crackdown on money-laundering with an effective legislation and PMLA is a result of the joint initiatives taken by several nations. Taking us through the various provisions of the PMLA, the learned Solicitor General submitted that money-laundering poses a serious threat to the financial system and financial integrity of the nation and has to be sternly dealt with. It was submitted that PMLA offence has two dimensions – predicate offence and money-laundering. Money-laundering is a separate and independent offence punishable under Section 4 read with Section 3 of the PMLA.

19. Learned Solicitor General submitted that under Section 19 of PMLA, specified officers, on the basis of material in possession, having reason to believe which is to be recorded in writing that the person has been guilty of the offence under the Act, have power to arrest. It was urged that the power to arrest and necessary safeguards are enshrined under Section 19 of the Act. It was submitted that since respondent has collected cogent materials to show that it is a case of money-laundering and the Enforcement Directorate has issued Letter rogatory and if the Court intervenes by granting anticipatory bail, the authority cannot exercise the statutory right of arrest and interrogate the appellant.

20. The learned Solicitor General submitted that they have obtained specific inputs from overseas banks and also about the companies and properties and it is a clear case of money-laundering. The learned Solicitor General submitted that the Court has power to look into the materials so collected by the Enforcement Directorate and the same cannot be shared with the appellant at this initial stage when the Court is considering the matter for grant of pre-arrest bail. Relying upon number of judgments, the learned Solicitor General has submitted that as a matter of practice, Courts have always perused the case diaries produced by the prosecution and receive and peruse the materials/documents to satisfy its judicial conscience. In support of his contention, learned Solicitor General placed reliance upon Romila Thapar and Others v. Union of India and Others (2018) 10 SCC 753, Jai Prakash Singh v. State of Bihar and Another (2012) 4 SCC 379 and Directorate of Enforcement and Another v. P.V. Prabhakar Rao (1997) 6 SCC 647 and other judgments and requested the Court to peruse the materials produced by the Enforcement Directorate in the sealed cover.

21. Opposing the grant of anticipatory bail, the learned Solicitor General submitted that the Enforcement Directorate has cogent evidence to prove that it is a case of money-laundering and there is a need of custodial interrogation of the appellant. The learned Solicitor General submitted that the economic offences stand as a class apart and custodial interrogation is required for the Enforcement Directorate to trace the trail of money and prayed for dismissal of the appeal.

22. As noted earlier, the predicate offences are under Sections 120B IPC and 420 IPC, Section 8 and Section 13(2) read with Section 13(1)(d) of Prevention of Corruption Act. Case is registered against the appellant and others under Sections 3 and 4 of PMLA. The main point falling for consideration is whether the appellant is entitled to the privilege of anticipatory bail. In order to consider whether the appellant is to be granted the privilege of anticipatory bail, it is necessary to consider the salient features of the special enactment – Prevention of Money-Laundering Act, 2002.

23. Prevention of Money-laundering Act, 2002Special Enactment:-

Money-laundering is the process of concealing illicit sources of money and the launderer transforming the money proceeds derived from criminal activity into funds and moved to other institution or transformed into legitimate asset. It is realised world around that money laundering poses a serious threat not only to the financial systems of the countries but also to their integrity and sovereignty. The Prevention of Money-laundering Act, 2002 was enacted in pursuance of the Political Declaration adopted by the Special Session of the United Nations General Assembly held in June 1998, calling upon the Member States to adopt national money-laundering

legislation and programme, primarily with a view to meet out the serious threat posed by money laundering to the financial system of the countries and to their integrity and sovereignty.

24. Statement of Objects and Reasons to the Prevention of Money-laundering Act, 2002 recognises that money laundering poses a serious threat not only to the financial systems of the countries but also to their integrity and sovereignty. PMLA is a special enactment containing the provisions with adequate safeguards with a view to prevent money-

laundering. The Preamble to the Prevention of Money-Laundering Act, 2002 states that “An Act to prevent money-laundering and to provide for confiscation of property derived from, or involved in, money-laundering and for matters connected therewith or incidental thereto.”

25. Chapter II of PMLA contains provisions relating to the offences of money-laundering. Section 2(1)(p) of PMLA defines “money-laundering” that it has the same meaning assigned to it in Section 3. Section 2(1)(ra) of PMLA defines “offence of cross border implications”. To prevent offences of “cross border implications”, PMLA contains Sections 55 to 61 dealing with reciprocal arrangement for assistance in certain matters and procedure for attachment and confiscation of property between the contracting States with regard to the offences of money-laundering and predicate offences.

Section 2(1)(y) of PMLA defines “scheduled offence” which reads as

under:-

“2. Definitions –

(1)……

(y) “scheduled offence” means –

(i) the offences specified under Part A of the Scheduled; or

(ii) the offences specified under Part B of the Schedule if the total value involved in such offences is one crore rupees or more; or

(iii)the offences specified under Part C of the Schedule.”

“Scheduled Offence” is a sine qua non for the offence of money-laundering which would generate the money that is being laundered. PMLA contains Schedules which originally contained three parts namely Part A, Part B and Part C. Part A contains various paragraphs which enumerate offences under the Indian Penal Code, Narcotic Drugs and Psychotropic Substances Act, 1985, offences under the Explosives Substances Act, 1908 and the offences under the Prevention of Corruption Act, 1988 (paragraph 8) etc. The Schedule was amended by Act 21 of 2009 (w.e.f. 01.06.2009). Section 13 of Prevention of Corruption Act was inserted in the Part A of the Schedule to PMLA by the Amendment Act, 16 of 2018 (w.e.f. 26.07.2018).

26. Section 3 of PMLA stipulates “money-laundering” to be an offence. Section 3 of PMLA states that whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected with the proceeds of the crime and projecting it as untainted property shall be guilty of the offences of money laundering. The provisions of the PMLA including Section 3 have undergone various amendments. The words in Section 3 “with the proceeds of crime and projecting” has been amended as “proceeds of crime including its concealment, possession, acquisition or use and projecting or claiming” by the Amendment Act 2 of 2013 (w.e.f. 15.02.2013).

27. Section 4 of PMLA deals with punishment for money laundering. Prior to Amendment Act 2 of 2013, Section 4 provided punishment with rigorous imprisonment for a term which shall not be less than three years but which may extend to seven years and the fine which may extend to Rs.5,00,000/-. By Amendment Act 2 of 2013, Section 4 is amended w.e.f. 15.02.2013 vide S.O. 343(E) dated 08.02.2013. Now, the punishment prescribed under Section 4 of PMLA to the offender is rigorous imprisonment for a term which shall not be less than three years but which may extend to seven years and the offender is also liable to pay fine. The limit of fine has been done away with and now after the amendment, appropriate fine even above Rs.5,00,000/- can be imposed against the offender.

28. Section 5 of PMLA which provides for attachment of property involved in money laundering, states that where the Director or any other officer not below the rank of Deputy Director authorised by the Director for the purposes of this Section, has “reason to believe” (the reason for such belief to be recorded in writing), on the basis of material in his possession, that (a) any person is in possession of any proceeds of crime; and (b) such proceeds of crime are likely to be concealed, transferred or dealt with in any manner which may result in frustrating any proceedings relating to confiscation of such proceeds of crime under Chapter III, he may, by order in writing, provisionally attach such property for a period not exceeding one hundred and fifty days from the date of the order, in such manner as may be prescribed. Section 5 provides that no such order of attachment shall be made unless, in relation to the scheduled offence, a report has been forwarded to a Magistrate under Section 173 of the Code of Criminal Procedure, 1973 (2 of 1974), or a complaint has been filed by a person authorised to investigate the offence mentioned in that Schedule, before a Magistrate or court for taking cognizance of the scheduled offence, as the case may be.

29. The term “reason to believe” is not defined in PMLA. The expression “reason to believe” has been defined in Section 26 of IPC. As per the definition in Section 26 IPC, a person is said to have “reason to believe” a thing, if he has sufficient cause to believe that thing but not otherwise. The specified officer must have “reason to believe” on the basis of material in his possession that the property sought to be attached is likely to be concealed, transferred or dealt with in a manner which may result in frustrating any proceedings for confiscation of their property under the Act. It is stated that in the present case, exercising power under Section 5 of the PMLA, the Adjudicating Authority had attached some of the properties of the appellant. Challenging the attachment, the appellant and others are said to have preferred appeal before the Appellate Tribunal and stay has been granted by the Appellate Authority and the said appeal is stated to be pending.

30. As rightly submitted by the learned Solicitor General, sufficient safeguards are provided under the provisions of PMLA. Under Section 5 of PMLA, the Director or any other officer not below the rank of Deputy Director authorised by the Director for the purposes of Section 5 who passed the impugned order is required to have “reason to believe” that the properties sought to be attached would be transferred or dealt with in a manner which would frustrate the proceedings relating to confiscation of such properties. Further, the officer who passed the order of attachment is required to record the reasons for such belief. The provisions of the PMLA and the Rules also provide for manner of forwarding a copy of the order of provisional attachment of property along with material under sub-section (2) of Section 5 of PMLA to the Adjudicating Authority.

31. In order to ensure the safeguards, in exercise of power under Section

73 of PMLA, the Central Government has framed “The Prevention of Money-Laundering (The Manner of Forwarding a Copy of the Order of Provisional Attachment of Property along with the Material, and Copy of the Reasons along with the Material in respect of Survey, to the Adjudicating Authority and its period of Retention) Rules, 2005”. Rule 3 of the said Rules provides for manner of forwarding a copy of the order of provisional attachment of property along with the material under sub-section (2) of Section 5 of the Act to the Adjudicating Authority. Rule 3 stipulates various safeguards as to the confidentiality of the sealed envelope sent to the Adjudicating Authority.

32. Section 17 of PMLA deals with the search and seizure. Section 17 which deals with search and seizure states that where the Director or any other officer not below the rank of Deputy Director authorised by him for the purposes of this section on the basis of the information in his possession has “reason to believe” (reason for such belief to be recorded in writing) that any person has committed an offence which constitutes the money laundering or is in possession of any proceeds of crime involved in money laundering etc. may search building, place and seize any record or property found as a result of such search. Section 17 of PMLA also uses the expression “reason to believe” and “reason for such belief to be recorded in writing”. Here again, the authorised officer shall immediately on search and seizure or upon issuance of freezing order forward a copy of the reasons so recorded along with the material in his possession to the Adjudicating Authority in a “sealed envelope” in the manner as may be prescribed and such Adjudicating Authority shall keep such reasons and material for such period as may be prescribed. In order to ensure the sanctity of the search and seizure and to ensure the safeguards, in exercise of power under Section 73 of PMLA, the Central Government has framed “The Prevention of Money-Laundering (Forms, Search and Seizure or Freezing and the Manner of Forwarding the Reasons and Material to the Adjudicating Authority, Impounding and Custody of Records and the period of Retention) Rules, 2005”.

33. Section 19 of PMLA deals with the power of the specified officer to arrest. Under sub-section (1) of Section 19 of PMLA, the specified officer viz. the Director, the Deputy Director, Assistant Director or any other officer authorised in this behalf by the Central Government by general or special order, on the basis of the material in possession, having “reason to believe” and “reasons for such belief be recorded in writing” that the person has been guilty of offence punishable under the PMLA, has power to arrest such person. The authorised officer is required to inform the accused the grounds for such arrest at the earliest and in terms of sub-section (3) of Section 19 of the Act, the arrested person is required to be produced to the jurisdictional Judicial Magistrate or Metropolitan Magistrate within 24 hours excluding the journey time from the place of arrest to the Magistrate’s Court. In order to ensure the safeguards, in exercise of power under Section 73 of the Act, the Central Government has framed “The Prevention of Money-Laundering (The Forms and the Manner of Forwarding a Copy of Order of Arrest of a Person along with the Material to the Adjudicating Authority and its Period of Retention) Rules, 2005”. Rule 3 of the said Rules requires the arresting officer to forward a copy of order of arrest and the material to the Adjudicating Authority in a sealed cover marked “confidential” and Rule 3 provides for the manner in maintaining the confidentiality of the contents.

34. As rightly submitted by Mr. Tushar Mehta, the procedure under PMLA for arrest ensures sufficient safeguards viz.:- (i) only the specified officers are authorised to arrest; (ii) based on “reasons to believe” that an offence punishable under the Act has been committed; (iii) the reasons for such belief to be recorded in writing; (iv) evidence and the material submitted to the Adjudicating Authority in sealed envelope in the manner as may be prescribed ensuring the safeguards in maintaining the confidentiality; and

(v) every person arrested under PMLA to be produced before the Judicial Magistrate or Metropolitan Magistrate within 24 hours. Section 19 of PMLA provides for the power to arrest to the specified officer on the basis of material in his possession and has “reason to believe” and the “reasons for such belief to be recorded in writing” that any person has been guilty of an offence punishable under PMLA. The statutory power has been vested upon the specified officers of higher rank to arrest the person whom the officer has “reason to believe” that such person has been guilty of an offence punishable under PMLA. In cases of PMLA, in exercising the power to grant anticipatory bail would be to scuttle the statutory power of the specified officers to arrest which is enshrined in the statute with sufficient safeguards.

35. Section 71 of PMLA gives overriding effect to the provisions of PMLA. Section 71 of PMLA states that the provisions of the Act would have overriding effect on the provisions of all other Acts applicable. The provisions of PMLA shall prevail over the contrary provisions of the other Acts. Section 65 of PMLA states that the provisions of Code of Criminal Procedure, 1973 shall apply to the provisions under the Act insofar as they are not inconsistent with the provisions of PMLA.

36. Insofar as the issue of grant of bail is concerned, Section 45 of PMLA starts with non-obstante clause. Section 45 imposes two conditions for grant of bail to any person accused of any offence punishable for a term of imprisonment of more than three years under Part-A of the Schedule of the Act viz., (i) that the prosecutor must be given an opportunity to oppose the application for such bail; (ii) that the court must be satisfied that there are reasonable grounds for believing that the accused persons is not guilty of such offence and that he is not likely to commit any offence while on bail.

37. The twin conditions under Section 45(1) for the offences classified thereunder in Part-A of the Schedule was held arbitrary and discriminatory and invalid in Nikesh Tarachand Shah v. Union of India and another (2018) 11 SCC 1. Insofar as the twin conditions for release of accused on bail under Section 45 of the Act, the Supreme Court held the same to be unconstitutional as it violates Articles 14 and 21 of the Constitution of India. Subsequently, Section 45 has been amended by Amendment Act 13 of 2008. The words “imprisonment for a term of imprisonment of more than three years under Part A of the Schedule” has been substituted with “accused of an offence under this Act…..”. Section 45 prior to Nikesh Tarachand and post Nikesh Tarachand reads as under:-

Section 45 – Prior to Nikesh Tarachand Shah Section 45. Offence to be cognizable and non- bailable.

(1) Notwithstanding contained in the Code of Criminal Procedure, 1973 (2 of 1974), no person accused of an offence punishable for a term of imprisonment of more than three years under Part A of the Schedule shall be released on bail or on his own bond unless-

(i) the Public Prosecutor has been given an opportunity to oppose the application for such release; and
(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail;

Provided that a person, who, is under the age of sixteen years, or is a woman or is sick or infirm, may be released on bail, if the Special Court so directs:

Section 45 – Post Nikesh Tarachand Shah Section 45. Offences to be cognizable and non-bailable.

(2) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no person accused of an offence under this Act shall be released on bail or on his own bond unless-

(i) the Public Prosecutor has been given an opportunity to oppose the application for such release; and
(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail;

Provided that a person, who, is under the age of sixteen years, or is a woman or is sick or infirm, or is accused either on his own or along with other co-accused of money laundering a sum of less than one crore rupees may be released on bail, if the Special court so directs.

38. The occurrence was of the year 2007-2008. CBI registered the case against Sh. Karti Chidambaram, the appellant and others on 15.05.2017 under Sections 120-B IPC read with Section 420 IPC and under Section 8 and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act. Learned Senior counsel for the appellant, Mr. A.M. Singhvi has submitted that there could not have been ‘reasons to believe’ that the appellant has committed the offence under Section 3 of PMLA, since in 2007-2008 the time of commission of alleged offence, Sections 120-B IPC and 420 IPC and Section 13 of the Prevention of Corruption Act were not there in Part ‘A’ of the Schedule to PMLA and were included in Part ‘A’ of the Schedule only by Amendment Act 21 of 2009 w.e.f. 01.06.2009 and w.e.f. 26.07.2018 respectively and therefore, no prima-facie case of commission of offence by the appellant under PMLA is made out. It was urged that under Article 20 of the Constitution, no person shall be convicted of any offence except for violation of law in force at the time of the commission of that act charged as offence. When Section 120B IPC and Section 420 IPC and Section 13 of Prevention of Corruption Act were not then included in Part A of the Schedule, in 2007-2008, then the appellant and others cannot be said to have committed the offence under PMLA. Insofar as Section 8 of the Prevention of Corruption Act is concerned, it was submitted that Section 8 of the Prevention of Corruption Act is not attracted against the appellant as there are no allegations in the FIR that the appellant accepted or agreed to accept any gratification as a motive or reward for inducing any public servant and hence, the accusation under Section 8 of the Prevention of Corruption Act does not apply to the appellant. It was further submitted that even assuming Section 8 of the Prevention of Corruption Act is made out, the amount allegedly paid to ASCPL was only Rs.10,00,000/- whereas, Rs.30,00,000/- was the amount then stipulated to attract Section 8 to be the Scheduled offence under Part A of the Schedule to the Act and therefore, there was no basis for offence against the appellant and in such view of the matter, the appellant is entitled for anticipatory bail.

39. Section 45 of the PMLA makes the offence of money laundering cognizable and non-bailable and no person accused of an offence punishable for a term of imprisonment of more than three years under Part A of the Schedule shall be released on bail unless the twin conditions thereon are satisfied. Section 120-B IPC – Criminal Conspiracy and Section 420 IPC – Cheating and dishonestly inducing delivery of property were included in Part A of the Schedule to PMLA by way of Amendment Act 21 of 2009 w.e.f. 01.06.2009 and by way of Amendment Act 2 of 2013 w.e.f. 15.02.2013. Likewise, Section 13 of the Prevention of Corruption Act has been introduced to Part A of the Schedule (Paragraph 8) by way of Amendment Act 16 of 2018 w.e.f. 26.07.2018. As pointed out earlier, the FIR was registered by CBI under Section 8 of the Prevention of Corruption Act also which was then in Part A of the Schedule at the time of alleged commission of offence.

40. Learned Senior counsel submitted that since the offence under Sections 120-B IPC and 420 IPC and under Section 13 of Prevention of Corruption Act were included in the Schedule only w.e.f. 01.06.2009 and w.e.f. 26.07.2018 respectively and there can never be a retrospective operation of a criminal/penal statue and the test is not whether the proceeds are retained by the person; but the test as laid down by the Constitution Bench of this Court is, the test of the acts constituting the offence at the time of the commission of the offence and the appellant cannot be proceeded with prosecution under PMLA in violation of constitutional protection under Article 20(1) of the Constitution of India.

41. Under Article 20(1) of the Constitution, no person shall be convicted of any offence except for violation of law in force at the time of commission of that act charged as an offence. FIR for the predicate offence has been registered by CBI under Section 120B IPC, 420 IPC and Section 13 of the Prevention of Corruption Act and also under Section 8 of the Prevention of Corruption Act. As discussed earlier, Section 120B IPC and Section 420 IPC were included in Part A of the Schedule only by Amendment Act 21 of 2009 w.e.f. 01.06.2009. Section 13 of the Prevention of Corruption Act was included in Part A of the Schedule by Amendment Act 16 of 2018 w.e.f. 26.07.2018. Section 8 of the Prevention of Corruption Act is punishable with imprisonment extending upto seven years. Section 8 of the Prevention of Corruption Act was very much available in Part A of the Schedule of PMLA at the time of alleged commission of offence in 2007-2008. It cannot therefore be said that the appellant is proceeded against in violation of Article 20(1) of the Constitution of India for the alleged commission of the acts which was not an offence as per law then in existence. The merits of the contention that Section 8 of the Prevention of Corruption Act cannot be the predicate offence qua the appellant, cannot be gone into at this stage when this Court is only considering the prayer for anticipatory bail.

42. Yet another contention advanced on behalf of the appellant is that minimum threshold for the Enforcement Directorate to acquire jurisdiction at the relevant time was Rs.30 lakhs whereas, in the present case, there is no material to show any payment apart from the sum of Rs.10 lakhs (approximately) allegedly paid by INX Media to ASCPL with which the appellant is said to be having no connection whatsoever. The merits of the contention that Section 8 of the Prevention of Corruption Act (then included in Schedule A of the PMLA in 2007-08) whether attracted or not and whether the Enforcement Directorate had the threshold to acquire jurisdiction under PMLA cannot be considered at this stage while this Court is considering only the prayer for anticipatory bail.

43. In terms of Section 4 of the PMLA, the offence of money-laundering is punishable with rigorous imprisonment for a term not less than three years extending to seven years and with fine. The Second Schedule to the Criminal Procedure Code relates to classification of offences against other laws and in terms of the Second Schedule of the Code, an offence which is punishable with imprisonment for three years and upward but not more than seven years is a cognizable and non-bailable offence. Thus, Section 4 of the Act read with the Second Schedule of the Code makes it clear that the offences under the PMLA are cognizable offences. As pointed out earlier, Section 8 of the Prevention of Corruption Act was then found a mention in Part ‘A’ of the Schedule (Paragraph 8). Section 8 of the Prevention of Corruption Act is punishable for a term extending to seven years. Thus, the essential requirement of Section 45 of PMLA “accused of an offence punishable for a term of imprisonment of more than three years under Part ‘A’ of the Schedule” is satisfied making the offence under PMLA. There is no merit in the contention of the appellant that very registration of the FIR against the appellant under PMLA is not maintainable.

Whether Court can look into the documents/materials collected during investigation

44. During the course of lengthy hearing, much arguments were advanced mainly on the question whether the court can look into the documents and materials produced by the prosecution before the court without first confronting the accused with those materials.

45. The learned Solicitor General submitted that during investigation, the Enforcement Directorate has collected materials and overseas banks have given specific inputs regarding the companies and properties that money has been parked in the name of shell companies and the said money has been used to make legitimate assets and that custodial interrogation is necessary with regard to the materials so collected. The learned Solicitor General sought to produce the materials so collected in the sealed cover and requested the court to peruse the documents and the materials to satisfy the conscience of the court as to the necessity for the custodial interrogation.

46. Contention of learned Solicitor General requesting the court to peruse the documents produced in the sealed cover was strongly objected by the appellant on the grounds :– (i) that the Enforcement Directorate cannot randomly place the documents in the court behind the back of the accused to seek custody of the accused; (ii) the materials so collected by Enforcement Directorate during investigation cannot be placed before the court unless the accused has been confronted with such materials.

47. Mr. Kapil Sibal, learned Senior counsel submitted that the statements recorded under Section 161 Cr.P.C. are part of the case diary and the case diary must reflect day to day movement of the investigation based on which the investigating agency came to the conclusion that the crime has been committed so that a final report can be filed before the court. The learned Senior counsel submitted that during the course of such investigation, the investigating officer may discover several documents which may have a bearing on the crime committed; however the documents themselves can never be the part of the case diary and the documents would be a piece of documentary evidence during trial which would be required to be proved in accordance with the provisions of the Evidence Act before such documents can be relied upon for the purpose of supporting the case of prosecution. Enforcement Directorate does not maintain a case diary; but maintain the file with paginated pages. It was urged that even assuming that there is a case diary maintained by the respondent in conformity with Section 172 Cr.P.C., the opinion of the investigating officer for the conclusion reached by the authorised officer under PMLA, can never be relied upon for the purposes of consideration of anticipatory bail.

48. Having regard to the submissions, two points arise for consideration –

(i) whether the court can/cannot look into the documents/materials produced before the court unless the accused was earlier confronted with those documents/materials?; and (ii) whether the court is called upon to

hold a mini inquiry during the intermediary stages of investigation by examining whether the questions put to the accused are ‘satisfactory’ or ‘evasive’, etc.?

49. Sub-section (2) of Section 172 Cr.P.C. permits any court to send for case diary to use them in the trial. Section 172(3) Cr.P.C. specifically provides that neither the accused nor his agents shall be entitled to call for case diary nor shall he or they be entitled to see them merely because they are referred to by the court. But if they are used by the police officer who made them to refresh his memory or if the court uses them for the purpose of contradicting the such police officer, the provisions of Section 161 Crl.P.C. or the provision of Section 145 of the Evidence Act shall be complied with. In this regard, the learned Solicitor General placed reliance upon Balakram v. State of Uttarakhand and others (2017) 7 SCC 668. Observing that the confidentiality is always kept in the matter of investigation and it is not desirable to make available the police diary to the accused on his demand, in Balakram, the Supreme Court held as under:-

“15. The police diary is only a record of day-to-day investigation made by the investigating officer. Neither the accused nor his agent is entitled to call for such case diary and also are not entitled to see them during the course of inquiry or trial. The unfettered power conferred by the statute under Section 172(2) CrPC on the court to examine the entries of the police diary would not allow the accused to claim similar unfettered right to inspect the case diary.

……….

17. From the aforementioned, it is clear that the denial of right to the accused to inspect the case diary cannot be characterised as unreasonable or arbitrary. The confidentiality is always kept in the matter of investigation and it is not desirable to make available the police diary to the accused on his demand.”

50. Reiterating the same principles in Sidharth and others v. State of Bihar (2005) 12 SCC 545, the Supreme Court held as under:-

“27. Lastly, we may point out that in the present case, we have noticed that the entire case diary maintained by the police was made available to the accused. Under Section 172 of the Criminal Procedure Code, every police officer making an investigation has to record his proceedings in a diary setting forth the time at which the information reached him, the time at which he began and closed his investigation, the place or places visited by him and a statement of the circumstances ascertained through his investigation. It is specifically provided in sub-clause (3) of Section 172 that neither the accused nor his agents shall be entitled to call for such diaries nor shall he or they be entitled to see them merely because they are referred to by the court, but if they are used by the police officer who made them to refresh his memory, or if the court uses them for the purpose of contradicting such police officer, the provisions of Section 161 CrPC or the provisions of Section 145 of the Evidence Act shall be complied with. The court is empowered to call for such diaries not to use it as evidence but to use it as aid to find out anything that happened during the investigation of the crime. These provisions have been incorporated in the Code of Criminal Procedure to achieve certain specific objectives. The police officer who is conducting the investigation may come across a series of information which cannot be divulged to the accused. He is bound to record such facts in the case diary. But if the entire case diary is made available to the accused, it may cause serious prejudice to others and even affect the safety and security of those who may have given statements to the police. The confidentiality is always kept in the matter of criminal investigation and it is not desirable to make available the entire case diary to the accused. In the instant case, we have noticed that the entire case diary was given to the accused and the investigating officer was extensively cross-examined on many facts which were not very much relevant for the purpose of the case. The learned Sessions Judge should have been careful in seeing that the trial of the case was conducted in accordance with the provisions of CrPC.” [underlining added]

The same position has been reiterated in Naresh Kumar Yadav v. Ravindra Kumar and others (2008) 1 SCC 632 [Paras 11 to 14], Malkiat Singh and others v. State of Punjab (1991) 4 SCC 341 [Para 11] and other judgments.

51. It is seen from various judgments that on several instances, court always received and perused the case diaries/materials collected by the prosecution during investigation to satisfy itself as to whether the investigation is proceeding in the right direction or for consideration of the question of grant of bail etc. In Directorate of Enforcement and another v. P.V. Prabhakar Rao (1997) 6 SCC 647, the Supreme Court perused the records to examine the correctness of the order passed by the High Court granting bail. In R.K. Krishna Kumar v. State of Assam and others (1998) 1 SCC 474, the Supreme Court received court diary maintained under Section 172 Cr.P.C. and perused the case diary to satisfy itself that the investigation has revealed that the company thereon has funded the organisation (ULFA) and that the appellants thereon had a role to play in it. While considering the question of arrest of five well known human rights activists, journalists, advocates and political workers, in Romila Thapar and Others v. Union of India and Others (2018) 10 SCC 753, this Court perused the registers containing relevant documents and the case diary produced by the State of Maharashtra. However, the court avoided to dilate on the factual position emerging therefrom on the ground that any observation made thereon might cause prejudice to the accused or to the prosecution in any manner. Upholding the validity of Section 172(3) Crl.P.C. and observing that “there can be no better custodian or guardian of the interest of justice than the court trying the case”, in Mukund Lal v. Union of India and another 1989 Supp. (1) SCC 622, the Supreme Court held as under:-

3. …..

“So far as the other parts are concerned, the accused need not necessarily have a right of access to them because in a criminal trial or enquiry, whatever is sought to be proved against the accused, will have to be proved by the evidence other than the diary itself and the diary can only be used for a very limited purpose by the court or the police officer as stated above. ………. When in the enquiry or trial,

everything which may appear against the accused has to be established and brought before the court by evidence other than the diary and the accused can have the benefit of cross-examining the witnesses and the court has power to call for the diary and use it, of course not as evidence but in aid of the enquiry or trial, I am clearly of the opinion, that the provisions under Section 172(3) CrPC cannot be said to be unconstitutional.”

We fully endorse the reasoning of the High Court and concur with its conclusion. We are of the opinion that the provision embodied in sub-section

(3) of Section 172 of the CrPC cannot be characterised as unreasonable or arbitrary. Under sub-section (2) of Section 172 CrPC the court itself has the unfettered power to examine the entries in the diaries. This is a very important safeguard. The legislature has reposed complete trust in the court which is conducting the inquiry or the trial. It has empowered the court to call for any such relevant case diary; if there is any inconsistency or contradiction arising in the context of the case diary the court can use the entries for the purpose of contradicting the police officer as provided in sub-section (3) of Section 172 of the CrPC. Ultimately there can be no better custodian or guardian of the interest of justice than the court trying the case. No court will deny to itself the power to make use of the entries in the diary to the advantage of the accused by contradicting the police officer with reference to the contents of the diaries. In view of this safeguard, the charge of unreasonableness or arbitrariness cannot stand scrutiny. ……. Public interest demands that such an entry is not made available to the accused for it might endanger the safety of the informants and it might deter the informants from giving any information to assist the investigating agency, …….” [underlining added]

52. So far as the production of the case diary during trial and reference to the same by the court and the interdict against accused to call for case diary is governed by Section 172 Cr.P.C. As per sub-section (3) of Section 172, neither the accused nor his agent is entitled to call for such case diaries and also not entitled to see them during the course of enquiry or trial. The case diaries can be used for refreshing memory by the investigating officer and court can use it for the purpose of contradicting such police officer as per provisions of Section 161 or Section 145 of the Indian Evidence Act. Unless the investigating officer or the court so uses the case diary either to refresh the memory or for contradicting the investigating officer as previous statement under Section 161, after drawing his attention under Section 145, the entries in case diary cannot be used by the accused as evidence (vide Section 172(3) Cr.P.C.).

53. It is well-settled that the court can peruse the case diary/materials collected during investigation by the prosecution even before the commencement of the trial inter-alia in circumstances like:- (i) to satisfy its conscience as to whether the investigation is proceeding in the right direction; (ii) to satisfy itself that the investigation has been conducted in the right lines and that there is no misuse or abuse of process in the investigation; (iii) whether regular or anticipatory bail is to be granted to the accused or not; (iv) whether any further custody of the accused is required for the prosecution; (v) to satisfy itself as to the correctness of the decision of the High Court/trial court which is under challenge. The above instances are only illustrative and not exhaustive. Where the interest of justice requires, the court has the powers, to receive the case diary/materials collected during the investigation. As held in Mukund Lal, ultimately there can be no better custodian or guardian of the interest of justice than the court trying the case. Needless to point out that when the Court has received and perused the documents/materials, it is only for the purpose of satisfaction of court’s conscience. In the initial stages of investigation, the Court may not extract or verbatim refer to the materials which the Court has perused (as has been done in this case by the learned Single Judge) and make observations which might cause serious prejudice to the accused in trial and other proceedings resulting in miscarriage of justice.

54. The Enforcement Directorate has produced the sealed cover before us containing the materials collected during investigation and the same was received. Vide order dated 29.08.2019, we have stated that the receipt of the sealed cover would be subject to our finding whether the court can peruse the materials or not. As discussed earlier, we have held that the court can receive the materials/documents collected during the investigation and peruse the same to satisfy its conscience that the investigation is proceeding in the right lines and for the purpose of consideration of grant of bail/anticipatory bail etc. In the present case, though sealed cover was received by this Court, we have consciously refrained from opening the sealed cover and perusing the documents. Lest, if we peruse the materials collected by the respondent and make some observations thereon, it might cause prejudice to the appellant and the other co-accused who are not before this court when they are to pursue the appropriate relief before various forum. Suffice to note that at present, we are only at the stage of considering the pre-arrest bail. Since according to the respondent, they have collected documents/materials for which custodial interrogation of the appellant is necessary, which we deem appropriate to accept the submission of the respondent for the limited purpose of refusing pre-arrest bail to the appellant.

55. Of course, while considering the request for anticipatory bail and while perusing the materials/note produced by the Enforcement Directorate/CBI, the learned Single Judge could have satisfied his conscience to hold that it is not a fit case for grant of anticipatory bail. On the other hand, the learned Single Judge has verbatim quoted the note produced by the respondent-Enforcement Directorate. The learned Single Judge, was not right in extracting the note produced by the Enforcement Directorate/CBI which in our view, is not a correct approach for consideration of grant/refusal of anticipatory bail. But such incorrect approach of the learned Single Judge, in our view, does not affect the correctness of the conclusion in refusing to grant of anticipatory bail to the appellant in view of all other aspects considered herein.

Re: Contention:- The appellant should have been confronted with the materials collected by the Enforcement Directorate earlier, before being produced to the court.

56. On behalf of the appellant, it was contended that the materials produced by the Enforcement Directorate could have never been relied upon for the purpose of consideration of anticipatory bail unless the appellant was earlier confronted with those documents/materials. It was submitted that if the appellant’s response was completely “evasive” and “non co-operative” during the three days when he was interrogated i.e. 19.12.2018, 01.01.2019 and 21.01.2019, the respondent should place before the court the materials put to the appellant and the responses elicited from the accused to demonstrate to the court that “the accused was completely evasive and non-co-operative”.

57. Contention of the appellant that the court will have to scrutinise the questions put to the accused during interrogation and answers given by the appellant and satisfy itself whether the answers were “evasive or not”, would amount to conducting “mini trial” and substituting court’s view over the view of the investigating agency about the “cooperation” or “evasiveness” of the accused and thereafter, the court to decide the questions of grant of anticipatory bail. This contention is far-fetched and does not merit acceptance.

58. As rightly submitted by learned Solicitor General that if the accused are to be confronted with the materials which were collected by the prosecution/Enforcement Directorate with huge efforts, it would lead to devastating consequences and would defeat the very purpose of the investigation into crimes, in particular, white collar offences. If the contention of the appellant is to be accepted, the investigating agency will have to question each and every accused such materials collected during investigation and in this process, the investigating agency would be exposing the evidence collected by them with huge efforts using their men and resources and this would give a chance to the accused to tamper with the evidence and to destroy the money trail apart from paving the way for the accused to influence the witnesses. If the contention of the appellant is to be accepted that the accused will have to be questioned with the materials and the investigating agency has to satisfy the court that the accused was “evasive” during interrogation, the court will have to undertake a “mini trial” of scrutinizing the matter at intermediary stages of investigation like interrogation of the accused and the answers elicited from the accused and to find out whether the answers given by the accused are ‘evasive’ or whether they are ‘satisfactory’ or not. This could have never been the intention of the legislature either under PMLA or any other statute.

59. Interrogation of the accused and the answers elicited from the accused and the opinion whether the answers given by the accused are “satisfactory” or “evasive”, is purely within the domain of the investigating agency and the court cannot substitute its views by conducting mini trial at various stages of the investigation.

60. The investigation of a cognizable offence and the various stages thereon including the interrogation of the accused is exclusively reserved for the investigating agency whose powers are unfettered so long as the investigating officer exercises his investigating powers well within the provisions of the law and the legal bounds. In exercise of its inherent power under Section 482 Cr.P.C., the court can interfere and issue appropriate direction only when the court is convinced that the power of the investigating officer is exercised mala fide or where there is abuse of power and non-compliance of the provisions of Code of Criminal Procedure.

However, this power of invoking inherent jurisdiction to issue direction and interfering with the investigation is exercised only in rare cases where there is abuse of process or non-compliance of the provisions of Criminal Procedure Code.

61. In King-Emperor v. Khwaja Nazir Ahmad AIR 1945 PC 18 : 1944 SCC Online PC 29, it was held as under:-

“…..it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry.

In India as has been shown there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would, as their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court. The functions of the judiciary and the police are complementary not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the Court to intervene in an appropriate case when moved under S. 491 of the Crl. P.C. ….” [underlining added]

62. The above decision in Khwaja Nazir Ahmad has been quoted with approval by the Supreme Court in Abhinandan Jha and others v. Dinesh Mishra AIR 1968 SC 117 and State of Bihar and another v. J.A.C. Saldanha and others (1980) 1 SCC 554. Observing that the investigation of the offence is the field exclusively reserved for the executive through the police department and the superintendence over which vests in the State

Government, in J.A.C. Saldanha, it was held as under:-

“25. There is a clear-cut and well demarcated sphere of activity in the field of crime detection and crime punishment. Investigation of an offence is the field exclusively reserved for the executive through the police department the superintendence over which vests in the State Government. The executive which is charged with a duty to keep vigilance over law and order situation is obliged to prevent crime and if an offence is alleged to have been committed it is its bounded duty to investigate into the offence and bring the offender to book. Once it investigates and finds an offence having been committed it is its duty to collect evidence for the purpose of proving the offence. Once that is completed and the investigating officer submits report to the court requesting the court to take cognizance of the offence under Section 190 of the Code its duty comes to an end. On a cognizance of the offence being taken by the court the police function of investigation comes to an end subject to the provision contained in Section 173(8), there commences the adjudicatory function of the judiciary to determine whether an offence has been committed and if so, whether by the person or persons charged with the crime by the police in its report to the court, and to award adequate punishment according to law for the offence proved to the satisfaction of the court. There is thus a well defined and well demarcated function in the field of crime detection and its subsequent adjudication between the police and the Magistrate. This had been recognised way back in King Emperor v. Khwaja Nazir Ahmad AIR 1944 PC 18 ………”.

The same view was reiterated in Dukhishyam Benupani, Asstt. Director, Enforcement Directorate (FERA) v. Arun Kumar Bajoria (1998) 1 SCC 52, M.C. Abraham and Another v. State of Maharashtra and Others (2003) 2 SCC 649, Subramanian Swamy v. Director, Central Bureau of Investigation and another (2014) 8 SCC 682 and Divine Retreat Centre v. State of Kerala and Others (2008) 3 SCC 542.

63. Investigation into crimes is the prerogative of the police and excepting

in rare cases, the judiciary should keep out all the areas of investigation. In State of Bihar and another v. P.P. Sharma, IAS and another 1992 Supp. (1) 222, it was held that “The investigating officer is an arm of the law and plays a pivotal role in the dispensation of criminal justice and maintenance of law and order. …..Enough power is therefore given to the police officer in the area of investigating process and granting them the court latitude to exercise its discretionary power to make a successful investigation…”. In Dukhishyam Benupani, Asstt. Director, Enforcement Directorate (FERA) v. Arun Kumar Bajoria (1998) 1 SCC 52, this Court held that “……it is not the function of the court to monitor investigation processes so long as such investigation does not transgress any provision of law. It must be left to the investigating agency to decide the venue, the timings and the questions and the manner of putting such questions to persons involved in such offences. A blanket order fully insulating a person from arrest would make his interrogation a mere ritual.”

64. As held by the Supreme Court in a catena of judgments that there is a well-defined and demarcated function in the field of investigation and its subsequent adjudication. It is not the function of the court to monitor the investigation process so long as the investigation does not violate any provision of law. It must be left to the discretion of the investigating agency to decide the course of investigation. If the court is to interfere in each and every stage of the investigation and the interrogation of the accused, it would affect the normal course of investigation. It must be left to the investigating agency to proceed in its own manner in interrogation of the accused, nature of questions put to him and the manner of interrogation of the accused.

65. It is one thing to say that if the power of investigation has been exercised by an investigating officer mala fide or non-compliance of the provisions of the Criminal Procedure Code in the conduct of the investigation, it is open to the court to quash the proceedings where there is a clear case of abuse of power. It is a different matter that the High Court in exercise of its inherent power under Section 482 Cr.P.C., the court can always issue appropriate direction at the instance of an aggrieved person if the High Court is convinced that the power of investigation has been exercised by the investigating officer mala fide and not in accordance with the provisions of the Criminal Procedure Code. However, as pointed out earlier that power is to be exercised in rare cases where there is a clear abuse of power and non-compliance of the provisions falling under Chapter-XII of the Code of Criminal Procedure requiring the interference of the High Court. In the initial stages of investigation where the court is considering the question of grant of regular bail or pre-arrest bail, it is not for the court to enter into the demarcated function of the investigation and collection of evidence/materials for establishing the offence and interrogation of the accused and the witnesses.

66. Whether direction to produce the transcripts could be issued:-

Contention of the appellant is that it has not been placed before the court as to what were the questions/aspects on which the appellant was interrogated on 19.12.2018, 01.01.2019 and 21.01.2019 and the Enforcement Directorate has not been able to show as to how the answers given by the appellant are “evasive”. It was submitted that the investigating agency-Enforcement Directorate cannot expect the accused to give answers in the manner they want and the investigating agency should always keep in their mind the rights of the accused protected under Article 20(3) of the Constitution of India. Since the interrogation of the accused and the questions put to the accused and the answers given by the accused are part of the investigation which is purely within the domain of the investigation officer, unless satisfied that the police officer has improperly and illegally exercised his investigating powers in breach of any statutory provision, the court cannot interfere. In the present case, no direction could be issued to the respondent to produce the transcripts of the questions put to the appellant and answers given by the appellant.

Grant of Anticipatory bail in exceptional cases:-

67. Ordinarily, arrest is a part of procedure of the investigation to secure not only the presence of the accused but several other purposes. Power

under Section 438 Cr.P.C. is an extraordinary power and the same has to be exercised sparingly. The privilege of the pre-arrest bail should be granted only in exceptional cases. The judicial discretion conferred upon the court has to be properly exercised after application of mind as to the nature and gravity of the accusation; possibility of applicant fleeing justice and other factors to decide whether it is a fit case for grant of anticipatory bail. Grant of anticipatory bail to some extent interferes in the sphere of investigation of an offence and hence, the court must be circumspect while exercising such power for grant of anticipatory bail. Anticipatory bail is not to be granted as a matter of rule and it has to be granted only when the court is convinced that exceptional circumstances exist to resort to that extraordinary remedy.

68. On behalf of the appellant, much arguments were advanced contending that anticipatory bail is a facet of Article 21 of the Constitution of India. It was contended that unless custodial interrogation is warranted, in the facts and circumstances of the case, denial of anticipatory bail would amount to denial of the right conferred upon the appellant under Article 21 of the Constitution of India.

69. Article 21 of the Constitution of India states that no person shall be deprived of his life or personal liberty except according to procedure prescribed by law. However, the power conferred by Article 21 of the Constitution of India is not unfettered and is qualified by the later part of the

Article i.e. “…except according to a procedure prescribed by law.” In State of M.P. and another v. Ram Kishna Balothia and another (1995) 3 SCC 221, the Supreme Court held that the right of anticipatory bail is not a part of Article 21 of the Constitution of India and held as under:-

“7. ……We find it difficult to accept the contention that Section 438 of the Code of Criminal Procedure is an integral part of Article 21. In the first place, there was no provision similar to Section 438 in the old Criminal Procedure Code. The Law Commission in its 41st Report recommended introduction of a provision for grant of anticipatory bail. It observed:

“We agree that this would be a useful advantage. Though we must add that it is in very exceptional cases that such power should be exercised.”

In the light of this recommendation, Section 438 was incorporated, for the first time, in the Criminal Procedure Code of 1973. Looking to the cautious recommendation of the Law Commission, the power to grant anticipatory bail is conferred only on a Court of Session or the High Court. Also, anticipatory bail cannot be granted as a matter of right. It is essentially a statutory right conferred long after the coming into force of the Constitution. It cannot be considered as an essential ingredient of Article 21 of the Constitution. And its non-application to a certain special category of offences cannot be considered as violative of Article 21.” [underlining added]

70. We are conscious of the fact that the legislative intent behind the introduction of Section 438 Cr.P.C. is to safeguard the individual’s personal liberty and to protect him from the possibility of being humiliated and from being subjected to unnecessary police custody. However, the court must also keep in view that a criminal offence is not just an offence against an individual, rather the larger societal interest is at stake. Therefore, a delicate balance is required to be established between the two rights – safeguarding the personal liberty of an individual and the societal interest. It cannot be said that refusal to grant anticipatory bail would amount to denial of the rights conferred upon the appellant under Article 21 of the Constitution of India.

71. The learned Solicitor General has submitted that depending upon the facts of each case, it is for the investigating agency to confront the accused with the material, only when the accused is in custody. It was submitted that the statutory right under Section 19 of PMLA has an in-built safeguard against arbitrary exercise of power of arrest by the investigating officer. Submitting that custodial interrogation is a recognised mode of interrogation which is not only permissible but has been held to be more effective, the learned Solicitor General placed reliance upon State Rep. By The CBI v. Anil Sharma (1997) 7 SCC 187; Sudhir v. State of Maharashtra and Another (2016) 1 SCC 146; and Assistant Director, Directorate of Enforcement v. Hassan Ali Khan (2011) 12 SCC 684.

72. Ordinarily, arrest is a part of the process of the investigation intended to secure several purposes. There may be circumstances in which the accused may provide information leading to discovery of material facts and relevant information. Grant of anticipatory bail may hamper the investigation. Pre-arrest bail is to strike a balance between the individual’s right to personal freedom and the right of the investigating agency to interrogate the accused as to the material so far collected and to collect more information which may lead to recovery of relevant information. In State Rep. By The CBI v. Anil Sharma (1997) 7 SCC 187, the Supreme Court held 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.”

73. Observing that the arrest is a part of the investigation intended to secure several purposes, in Adri Dharan Das v. State of W.B. (2005) 4 SCC 303, it was held as under:-

“19. Ordinarily, arrest is a part of the process of investigation intended to secure several purposes. The accused may have to be questioned in detail regarding various facets of motive, preparation, commission and aftermath of the crime and the connection of other persons, if any, in the crime. There may be circumstances in which the accused may provide information leading to discovery of material facts. It may be necessary to curtail his freedom in order to enable the investigation to proceed without hindrance and to protect witnesses and persons connected with the victim of the crime, to prevent his disappearance, to maintain law and order in the locality. For these or other reasons, arrest may become an inevitable part of the process of investigation. The legality of the proposed arrest cannot be gone into in an application under Section 438 of the Code. The role of the investigator is well defined and the jurisdictional scope of interference by the court in the process of investigation is limited. The court ordinarily will not interfere with the investigation of a crime or with the arrest of the accused in a cognizable offence. An interim order restraining arrest, if passed while dealing with an application under Section 438 of the Code will amount to interference in the investigation, which cannot, at any rate, be done under Section 438 of the Code.”

74. In Siddharam Satlingappa Mhetre v. State of Maharashtra and Others (2011) 1 SCC 694, the Supreme Court laid down the factors and parameters to be considered while dealing with anticipatory bail. It was held that the nature and the gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made and that the court must evaluate the available material against the accused very carefully. It was also held that the court should also consider whether the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.

75. After referring to Siddharam Satlingappa Mhetre and other judgments and observing that anticipatory bail can be granted only in exceptional circumstances, in Jai Prakash Singh v. State of Bihar and another (2012) 4 SCC 379, the Supreme Court held as under:-

“19. Parameters for grant of anticipatory bail in a serious offence are required to be satisfied and further while granting such relief, the court must record the reasons therefor. Anticipatory bail can be granted only in exceptional circumstances where the court is prima facie of the view that the applicant has falsely been enroped in the crime and would not misuse his liberty. (See D.K. Ganesh Babu v. P.T. Manokaran (2007) 4 SCC 434, State of Maharashtra v. Mohd. Sajid Husain Mohd. S. Husain (2008) 1 SCC 213 and Union of India v. Padam Narain Aggarwal (2008) 13 SCC 305.)”

Economic Offences:-

76. Power under Section 438 Cr.P.C. being an extraordinary remedy, has to be exercised sparingly; more so, in cases of economic offences.

Economic offences stand as a different class as they affect the economic fabric of the society. In Directorate of Enforcement v. Ashok Kumar Jain (1998) 2 SCC 105, it was held that in economic offences, the accused is not entitled to anticipatory bail.

77. The learned Solicitor General submitted that the “Scheduled offence” and “offence of money laundering” are independent of each other and PMLA being a special enactment applicable to the offence of money laundering is not a fit case for grant of anticipatory bail. The learned Solicitor General submitted that money laundering being an economic offence committed with much planning and deliberate design poses a serious threat to the nation’s economy and financial integrity and in order to unearth the laundering and trail of money, custodial interrogation of the appellant is necessary.

78. Observing that economic offence is committed with deliberate design with an eye on personal profit regardless to the consequence to the community, in State of Gujarat v. Mohanlal Jitamalji Porwal and others (1987) 2 SCC 364, it was held as under:-

“5. ….The entire community is aggrieved if the economic offenders who ruin the economy of the State are not brought to book. A murder may be committed in the heat of moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the community. A disregard for the interest of the community can be manifested only at the cost of forfeiting the trust and faith of the community in the system to administer justice in an even-handed manner without fear of criticism from the quarters which view white collar crimes with a permissive eye unmindful of the damage done to the national economy and national interest…..”

79. Observing that economic offences constitute a class apart and need to be visited with different approach in the matter of bail, in Y.S. Jagan Mohan Reddy v. CBI (2013) 7 SCC 439, the Supreme Court held as under:-
“34. Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offences having deep-rooted conspiracies and involving huge loss of public funds need to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country.

35. While granting bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations.” [underlining added]

80. Referring to Dukhishyam Benupani, Assistant Director, Enforcement Directorate (FERA) v. Arun Kumar Bajoria (1998) 1 SCC 52, in Enforcement Officer, Ted, Bombay v. Bher Chand Tikaji Bora and others (1999) 5 SCC 720, while hearing an appeal by the Enforcement Directorate against the order of the Single Judge of the Bombay High Court granting anticipatory bail to the respondent thereon, the Supreme Court set aside the order of the Single Judge granting anticipatory bail.

81. Grant of anticipatory bail at the stage of investigation may frustrate the investigating agency in interrogating the accused and in collecting the useful information and also the materials which might have been concealed. Success in such interrogation would elude if the accused knows that he is protected by the order of the court. Grant of anticipatory bail, particularly in economic offences would definitely hamper the effective investigation. Having regard to the materials said to have been collected by the respondent-Enforcement Directorate and considering the stage of the investigation, we are of the view that it is not a fit case to grant anticipatory bail.

82. In a case of money-laundering where it involves many stages of “placement”, “layering i.e. funds moved to other institutions to conceal origin” and “interrogation i.e. funds used to acquire various assets”, it requires systematic and analysed investigation which would be of great advantage. As held in Anil Sharma, success in such interrogation would elude if the accused knows that he is protected by a pre-arrest bail order. Section 438 Cr.P.C. is to be invoked only in exceptional cases where the case alleged is frivolous or groundless. In the case in hand, there are allegations of laundering the proceeds of the crime. The Enforcement Directorate claims to have certain specific inputs from various sources, including overseas banks. Letter rogatory is also said to have been issued and some response have been received by the department. Having regard to the nature of allegations and the stage of the investigation, in our view, the investigating agency has to be given sufficient freedom in the process of investigation. Though we do not endorse the approach of the learned Single Judge in extracting the note produced by the Enforcement Directorate, we do not find any ground warranting interference with the impugned order. Considering the facts and circumstances of the case, in our view, grant of anticipatory bail to the appellant will hamper the investigation and this is not a fit case for exercise of discretion to grant anticipatory bail to the appellant.

83. In the result, the appeal is dismissed. It is for the appellant to work out his remedy in accordance with law. As and when the application for regular bail is filed, the same shall be considered by the learned trial court on its own merits and in accordance with law without being influenced by any of the observations made in this judgment and the impugned order of the High Court.

J. [R. BANUMATHI]

J. [A.S. BOPANNA]

New Delhi;

September 05, 2019


P. CHIDAMBARAM VS DIRECTORATE OF ENFORCEMENT

Availability of an alternative remedy of filing an appeal is not a bar in accepting petition under Section 482 of Cr.P.C.

Availability of an alternative remedy of filing an appeal is not an absolute bar in entertaining a petition under Section 482 of the Code.

(2011) 13 SCALE 522


(SUPREME COURT OF INDIA)

Punjab State Warehousing Corporation Faridkot  Vs  Sh. Durga Ji Traders and Others

(Before : D.K. Jain and Anil R. Dave, JJ.)

Criminal Appeal No. 2226 of 2011 (Arising out of S.L.P. (Criminal) No. 5305 of 2008) : Decided On: 28-11-2011

Criminal Procedure Code, 1973—Sections 205, 317 and 482—dismissal of complaint for default—Restoration application dismissed on the ground of availability of an alternative remedy —Trial Court dismissed complaint on a hyper technical ground that since complainant had been appearing in person despite order exempting him from personal appearance—An order of exemption from personal appearance continues to be in force till it is revoked or recalled—Availability of alternative remedy of filing appeal is not an absolute bar in entertaining petition under Section 482—Complaint restored.

ORDER

1. Leave granted.

2. This appeal, by special leave, arises from judgment dated 18th February, 2008 rendered by a learned Single Judge of the High Court of Judicature for the States of Punjab and Haryana at Chandigarh. By the impugned judgment, the learned Single Judge has dismissed the petition preferred by the Appellant under Section 482 of the Code of Criminal Procedure, 1973 (for short “the Code”), seeking quashing of orders dated 18th February 2003, by which the Criminal Complaint filed against the Respondents in this appeal, for having committed offences under Sections 406 and 409 of the Indian Penal Code, 1860 (for short “Indian Penal Code”) had been dismissed in default by the Chief Judicial Magistrate, Muktsar; and 9th November 2005 by which the application for restoration of the said complaint was dismissed.

3. Succinctly put, the material facts giving rise to the present appeal are as follows:

The Appellant, a statutory body, constituted under the Warehousing Corporation Act, 1962, filed a private criminal complaint under Sections 406 and 409 of the Indian Penal Code against the Respondents, alleging shortage of huge quantity of rice in respect of paddy entrusted to them as miller. Simultaneously, an application for exemption from personal appearance of the complainant therein, was also filed, whereon the following order was passed by the Trial Court on 16th April 1999.

In view of the application made by the complainant presence of complainant is exempted till further orders.

The trial proceeded in the normal course for six years. However, on 18th February 2003 the Chief Judicial Magistrate dismissed the case for non appearance of the complainant even though the pleader for the Appellant was present in court. The order reads thus:

None is present on behalf of the complainant nor any request has been received on behalf of the complainant. Both the accused are present on bail. In view of the absence of the complainant, complaint stands dismissed in default. Be consigned to Record Room.

Pronounced.

Sd/-

Chief Judicial Magistrate

Muktsar

At this stage an application for restoration of the complaint has been filed on the ground that personal appearance of the complainant was already exempted vide order dated 16.4.99. Copy supplied to the counsel for accused. However, let the notice to the accused regarding the application be given present in the court for 24.3.03.

File be also produced on the date fixed.

Sd/-

CJM 18.2.03

The application for restoration of the complaint was ultimately dismissed on 9th November 2005, by the following order:

After considering the arguments of the parties at length, I am considered of the view that complaint was dismissed in default. Complainant was already exempted from the personal appearance on 16.4.99 and thereafter he appeared in the court in person. The orders have become redundant and the complainant had to seek afresh exemption from appearance. From the perusal of the record, it appears that complainant has never moved any fresh application for exemption nor the same was ever allowed and as such the order of dismissal dated 19.2.03 has become final and counsel for the accused has referred the Apex Court judgments and I have gone through the same and find a force in the contention of the learned counsel for accused. There is no provision in Criminal Procedure Code to review the order and recall the summons. Hence, application moved by the applicant is hereby declined and accused are also discharged. File be consigned to the record room.

4. Aggrieved thereby the Appellant moved the High Court with a petition under Section 482 of the Code for setting aside of the said orders and restoration of the complaint. As aforesaid, by the impugned judgment, the High Court has dismissed the petition, holding that the dismissal in default of a private complaint amounts to acquittal of the accused, and since against such an order a specific statutory remedy exists in the Code, a petition under Section 482 of the Code cannot be entertained. Hence the present appeal by the complainant.

5. As per the office report, the Respondents had refused to accept summons when the same were tendered to them by the process server. Consequently, vide order dated 18th September, 2009 the Respondents were deemed to have been served. We have heard the Learned Counsel for the Appellant.

6. Learned Counsel appearing for the Appellant has assailed the impugned judgment mainly on the ground that the discretion vested in the High Court under Section 482 of the Code being very wide, in the instant case the High Court grossly erred in declining to exercise its jurisdiction on the ground that an alternative remedy was available to the Appellant against an order of acquittal of the accused. Relying on the decision of this Court in Aseem Shabanli Merchant v. Brij Mehra and Anr., (2005) 11 SCC 412, Learned Counsel has urged that having regard to the serious nature of the charges against the Respondents, the complaint should not have been dismissed in default on account of non appearance of the complainant, who had been otherwise exempted from personal appearance, and the case ought to have been tried on merits. In support of his contention that dismissal of the complaint because of a singular default in appearance on the part of the complainant, was improper, Learned Counsel relied upon the decision of this Court in Mohd. Azeem v. A. Venkatesh and Anr., (2002) 7 SCC 726. It is also argued that having regard to the nature of the case, the High Court committed a patent error in dismissing the petition under Section 482 of the Code on the ground of availability of an alternative remedy. In support of the proposition that availability of an alternative remedy per se is no ground for dismissal of an application under Section 482 of the Code, Learned Counsel commends us to the decision of this Court in Dhariwal Tobacco Products Ltd and Ors. v. State of Maharashtra and Anr. (2009) 2 SCC 370.

7. The short question that falls for consideration is whether in the fact- situation the High Court was justified in declining to exercise its jurisdiction under Section 482 of the Code?

8. It is trite law that the inherent power of the High Court ought to be exercised to prevent miscarriage of justice or to prevent the abuse of the process of the Court or to otherwise secure the ends of justice. The Court possesses wide discretionary powers under the Section to secure these ends. In this behalf it would be profitable to refer to the decision of this Court in Jeffrey J. Diermeier and Anr. v. State of West Bengal and Anr., (2010) 6 SCC 243, wherein one of us (D.K. Jain, J.), speaking for the bench, explained the scope and ambit of inherent powers of the High Court under Section 482 of the Code as follows:

20…

The Section itself 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 Court; and (iii) to otherwise secure the ends of justice. Nevertheless, it is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction of the Court. Undoubtedly, the power possessed by the High Court under the said provision is very wide but it is not unlimited. It has to be exercised sparingly, carefully and cautiously, ex debit justifies to do real and substantial justice for which alone the court exists. It needs little emphasis that the inherent jurisdiction does not confer an arbitrary power on the High Court to act according to whim or caprice. The power exists to prevent abuse of authority and not to produce injustice.

22. In Dinesh Dutt Joshi v. State of Rajasthan, (2001) 8 SCC 570, while dealing with the inherent powers of the High Court, this Court has observed thus (SCC p. 573, para 6):

6….The principle embodied in the section is based upon the maxim: quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest i.e. when the law gives anything to anyone, it gives also all those things without which the thing itself would be unavailable. The section does not confer any new power, but only declares that the High Court possesses inherent powers for the purposes specified in the section. As lacunae are sometimes found in procedural law, the section has been embodied to cover such lacunae wherever they are discovered. The use of extraordinary powers conferred upon the High Court under this section are however required to be reserved, as far as possible, for extraordinary cases.

9. Bearing in mind the afore-stated legal position in regard to the scope and width of the power of the High Court under Section 482 of the Code, we are of the opinion that the impugned decision is clearly indefensible. As noted above, the High Court has rejected the petition under Section 482 of the Code on the ground of availability of an alternative remedy without considering the seriousness of the nature of the offences and the fact that the Trial Court had dismissed the complaint on a hyper technical ground viz. since the complainant had been appearing in person, despite order dated 16th April 1999, exempting him from personal appearance, the said exemption order became redundant and the complainant should have sought a fresh exemption from personal appearance. We feel that such a view defies any logic. An order of exemption from personal appearance continues to be in force till it is revoked or recalled. We are convinced that in the instant case, rejection of Appellant’s petition under Section 482 of the Code has resulted in miscarriage of justice. Availability of an alternative remedy of filing an appeal is not an absolute bar in entertaining a petition under Section 482 of the Code. As aforesaid, one of the circumstances envisaged in the said Section, for exercise of jurisdiction by the High Court is to secure the ends of justice. Undoubtedly, the Trial Court had dismissed the complaint on a technical ground and therefore, interests of justice required the High Court to exercise its jurisdiction to set aside such an order so that the Trial Court could proceed with the trial on merits.

10. Resultantly, the appeal is allowed. The impugned judgment as also the orders of the Chief Judicial Magistrate dated 18th February 2003 and 9th November 2005 are set aside and the complaint filed by the appellant is restored to the file of the Chief Judicial Magistrate. The Chief Judicial Magistrate shall now proceed with the trial after securing the presence of the accused.


Issues involved :

  1. There is no provision in Criminal Procedure Code to review the order and recall the summons.

  2. Dismissal in default of a private complaint amounts to acquittal of the accused, and since against such an order a specific statutory remedy exists in the Code[Appeal], a petition under Section 482 of the Code cannot be entertained.

  3. Dismissal of the complaint because of a singular default in appearance on the part of the complainant, was improper.  Mohd. Azeem v. A. Venkatesh and Anr., (2002) 7 SCC 726.

  4. Section 482 of Cr.P.C does not confer any new power, but only declares that the High Court possesses inherent powers for the purposes specified in the section.