Hariom Vijay Pande, Convict No. C-92 vs State of Maharashtra, Through Divisional Commissioner, Nagpur- 3/12/2019

Parole leave is recognized as a statutory right as per Rule 19 of the Maharashtra Prisons (Mumbai Furlough and Parole) Rules, 1959 (hereinafter referred to as ‘Rules of 1959’ for short) and the convicts are entitled for parole leave, if the circumstances as referred in Rule 19 exist. Of course, it is not the absolute right of the convict to seek parole leave and the right is circumscribed by various other considerations including the objective satisfaction of the jail authorities and the authority competent to consider the application made by the convict for grant of parole leave.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH : NAGPUR

CRIMINAL WRIT PETITION NO. 769 OF 2019

Hariom Vijay Pande, Convict No. C-92, Aged Major, Occ. Business- Nil, Confined at Open Prison, Gadchiroli. ….. PETITIONER

… Versus …

1. State of Maharashtra,

Through Divisional Commissioner, Nagpur.

2. The Superintendent, Open Prison, Gadchiroli.

                                            ….. RESPONDENTS

Act: Rule 19 of the Maharashtra Prisons (Mumbai Furlough and Parole) Rules, 1959

Advocates: 

Ms. Laxmi Y. Malewar, Advocate for the Petitioner.

Ms. N.R. Tripathi, A.P.P for the Respondents/State.

CORAM: Z.A. HAQ & S.M. MODAK, JJ.

DATED: 03/12/2019

ORAL JUDGMENT

Per Z.A. Haq, J :

01] Rule. Rule made returnable forthwith.

02] The petitioner is convicted for the offence punishable under Section 302 read with Section 34 of Indian Penal Code and is undergoing life imprisonment since 2010. The petitioner had applied for grant of parole leave on 16th July, 2018 on the ground that his wife was suffering from serious illness. According to the respondents, the application of petitioner was sent to the Office of Superintendent of Police, Azamgarh (Uttar Pradesh), from where the petitioner hails. The Police Sub-Inspector of Police Station, Azamgarh submitted his report dated 19th February, 2019, which was received by the Office of respondent No.2 on 5th March, 2019. This report shows that the claim of the petitioner (convict) that his wife was suffering from illness was correct. However, release of petitioner on parole leave was objected on the ground that there was a possibility of petitioner absconding after his release on parole leave. Parole application filed by the petitioner came to be rejected by order dated 4th June, 2019.

03] From the reply filed by the respondent No.2, it is noticed that when the petitioner was earlier released on furlough leave in January 2015, August 2018 and September 2019, every time he had surrendered himself on due date and when he was released on parole leave in May 2017, that time also he surrendered himself on due date. The report submitted by the Police Sub-Inspector, Police Station, Azamgarh does not give any details as to on what basis Police Sub-Inspector, Police Station, Azamgarh came to the conclusion that there was every possibility that the petitioner may abscond if he is released on parole leave.

Parole leave is recognized as a statutory right as per Rule 19 of the Maharashtra Prisons (Mumbai Furlough and Parole) Rules, 1959 (hereinafter referred to as ‘Rules of 1959’ for short) and the convicts are entitled for parole leave, if the circumstances as referred in Rule 19 exist. Of course, it is not the absolute right of the convict to seek parole leave and the right is circumscribed by various other considerations including the objective satisfaction of the jail authorities and the authority competent to consider the application made by the convict for grant of parole leave. Hence, if it is recommended that parole leave should not be granted, such recommendations should be supported by proper reasons and the necessary details on the basis of which the Officer recommending that parole leave should not be granted, forms his opinion. We have noticed that the applications submitted by the convicts for grant of parole leave are considered mechanically and a sentence is inserted that parole leave should not be granted as release of the convict may result in law and order problem or the convict may abscond. Of course, Police Officials are entitled to make such recommendations and in appropriate cases, they should make recommendation of such type. However, in such situation, they should support that conclusion by recording the reasons and giving details of the material on the basis of which they form the opinion. In the present case, Police Sub-Inspector, Azamgarh has not pointed out the basis for his negative recommendation, hence it cannot be considered.

04] In the present case, we further find that there has been laxity on the part of the respondents and the concerned Police Officials at every level, which resulted in inordinate delay in taking decision on the application submitted by the petitioner for grant of parole leave. As recorded earlier, the petitioner sought parole leave on the ground that his wife was suffering from serious illness and this claim made by the petitioner is found to be correct by the Police Sub-Inspector, Police Station, Azamgarh. The facts of the present case show the apathy towards the convicts and that they are deprived of their statutory right recognized by the State Government.

05] It is relevant to note that Rule 22 of the Rules of 1959 provides for the manner in which the application for parole should be dealt with. Rule 22(2) of the Rules of 1959 lays down that on receipt of the application for grant of parole leave, the Deputy Superintendent of Police or the Assistant Commissioner of Police concerned, as the case may be, shall immediately make enquiries to ascertain whether the ground/grounds on which parole is applied for, is/are genuine and submit report within fifteen days to the competent authority pointing out whether it recommends the grant of parole and whether there is likelihood of breach of peace, if the prisoner is released on parole.

Rule 23 of the Rules of 1959 lays down that on receipt of the application for grant of parole, the competent authority may make such enquiries, as it considers necessary, and pass such orders as it considers fit, and if the competent authority is of the view that the prisoner/convict should be released on parole, the competent authority shall make an order to that effect within 17 days from the date of receipt of enquiry report from the Deputy Superintendent of Police or the Assistant Commissioner of Police as contemplated by Rule 22 of the Rules of 1959.

06] Rule 19(2)(C)(ii) of the Rules of 1959 provides for the situations under which the prisoner/convict may be released on regular parole. It lays down that the prisoner/convict shall be eligible for next release on parole leave or regular parole leave after completion of one year of actual imprisonment and subsequent releases then onwards after completion of six months of actual imprisonment, to be counted from his last return every time either from furlough or regular parole.

07] Because of the gross laxity of the respondents and the concerned officers, the release of the petitioner on parole leave is delayed unnecessarily and the right of the petitioner/convict as per Rule 19(2)(C)(ii) for subsequent release on parole leave is frustrated.

08] Considering the earlier conduct of the petitioner, we are of the view that the petitioner should be released on regular parole for thirty days, of course, subject to the conditions as may be imposed by the concerned authority.

As we find that there has been gross negligence on the part of the respondents and other concerned officers, we are of the view that compensation of Rs. 10,000/- should be granted to the petitioner.

Hence the following order:-

ORDER

i. The impugned order is set aside.

ii. The respondents are directed to release the petitioner on parole leave for thirty days, on such conditions as shall be imposed by the competent authority.

iii. State of Maharashtra shall pay an amount of Rs.10,000/- (Rupees Ten Thousand Only) to the petitioner towards compensation. The State of Maharashtra will be at liberty to recover the amount of compensation from the erring Officer/Officers after conducting enquiry against such Officer/Officers.

iv. The amount of compensation shall be paid to the petitioner within two months and affidavit of compliance shall be filed by the respondent No.2 on record of this petition.

Rule is made absolute in the above terms.

v. Fees be paid as per the rules to Ms. Laximi Y. Malewar, Advocate appointed to represent the petitioner.

JUDGE                                                                                                                       JUDGE


 

Jyotsna Roy -VS- State of West Bengal & Ors [CHC] 15/11/2019

Considering the nature of duties and in the jurisdiction exercised by the deceased and considering the death of the deceased at the age of 52 years while in service, such an event cannot be taken lightly, irrespective of whether a writ petition had been filed or not. The writ petition has only added substance to the requirement of an in-depth investigation. The Court is therefore in requirement of a verifiable independent expert opinion on the results of the investigation collected so far.

SL-3 15.11.2019
Court No.1
KB/G.S.D

Calcutta High Court
In the Circuit Bench at Jalpaiguri
WPA 201 of 2019

CAN 1 of 2019

Jyotsna Roy -VS- State of West Bengal & Ors.

Appearance: 

Mr. Arjun Chowdhury
… for the petitioner

Mr. Subir Kr. Saha
Mr. Bikramaditya Ghosh
… For the State

Mr. Samir Pal

    … For the Respondent Nos. 2 and 6

Party/Parties is/are represented in the order/orders of their name/names as printed above in the cause title.

Abundant documents are placed on behalf of both the petitioner and the Investigating Officer, i.e. the State respondents, connected to the alleged cause of death of the writ petitioner.

This Court also notices the order of the Hon’ble Single Bench dated September 11, 2019 directing, inter alia, the Investigating Agency to file a complete Report on the investigation on November 5, 2019 before the Hon’ble Bench.

Today, Mr. Chowdhury, Learned Advocate, appears for the petitioner and assails the Report of the Investigating Officer of the Siliguri (T), GRP dated September 9, 2019 as filed before Court.

However, Mr. Ghosh, Learned State Counsel, points out that the Report dated September 9, 2019 has since been superseded by filing a Final Report under the Code of Criminal Procedure dated 14th November, 2019 again by the self-same Investigating Officer, without being able to draw a conclusion with regard to the investigation. This Court has also heard Mr. Pal, Learned Counsel, appearing for the RPF.

Considering the nature of duties and in the jurisdiction exercised by the deceased and considering the death of the deceased at the age of 52 years while in service, such an event cannot be taken lightly, irrespective of whether a writ petition had been filed or not. The writ petition has only added substance to the requirement of an in-depth investigation. The Court is therefore in requirement of a verifiable independent expert opinion on the results of the investigation collected so far.

For the above reasons, the parties and, particularly the petitioner, is permitted to revert to the Court with appropriate instructions on the next date.

Let this matter appear before the next available Circuit Bench, subject to its convenience, along with the connected application.

(SUBRATA TALUKDAR  J. )

15.11.2019


Original order :

Jyotsna Roy -VS- State of West Bengal & Ors.[PDF]

Rajeev Kumar -Vs CBI, SP, Economic Offences –IV, CGO Complex-CHC 01/10/2019

Calcutta High Court Grants Anticipatory Bail to IPS Rajeev Kumar

The status of a witness is convertible to the accused during the course of investigation subject to the collection of independent sufficient incriminating materials against the petitioner, which must be in the nature of startling and clinching in sense.

ACTS :Section 438 of the Code of Criminal Procedure

IN THE HIGH COURT AT CALCUTTA

CRIMINAL APPELLATE JURISDICTION

APPELLATE SIDE

Before :

The Hon’ble Justice SAHIDULLAH MUNSHI

And

The Hon’ble Justice SUBHASIS DASGUPTA

C.R.M. No. 9230 Of 2019

Rajeev Kumar -Versus CBI, SP, Economic Offences –IV, CGO Complex,

Mr. Sekhar Kumar Basu,

Mr. Debasis Roy,
Mr. Gopal Haldar,
Mr. Rudradipta Nandy,
Mr. Rajib Kumar Jha.

… for the petitioner.

Mr. Y. J. Dastur,

Mr. K.C. Mishra,
Mr. Anirban Mitra,
Mr. Samrat Goswami.
… for the CBI

Heard on :. 26.09.2019 & 30.09.2019

Judgment on : October 1 , 2019

Sahidullah Munshi, J.: This is an application under Section 438 of the Code of Criminal Procedure, filed by the petitioner apprehending arrest in connection with case no. R.C.- 04 (S) of 2014 under Section 120B read with Sections 420/406/409 of Indian Penal Code and Section 4 / 6 of Prize Chits and Money Circulation Scheme (Banning) Act, 1978.

It is the petitioner’s case that he has never been entangled in any criminal offences, or has been rendered to be guilty of any misconduct, while he was serving as the Commissioner of Police, Bidhannagar City Police. At the relevant time, he was entrusted to look after the day to day functioning of the SIT, formed by the Government of West Bengal, Home Department, which was notified under Police Gazette on 26th April, 2013. The SIT was headed by the Director General and IGP, West Bengal, who were supposed to be assisted from time to time by the Additional Director General, CID, West Bengal. This petitioner had the role to look after day to day functioning of SIT as a member thereof.

In this application the petitioner has disclosed that although, he rendered his all cooperation during the tenure of his office from January, 2012 to February, 2015, as Commissioner of Bidhannagar Police Commissionerate, and consequently no allegation was made against him, but recently the investigating agency sought for examination of the petitioner for the progress of investigation.

Investigating Authority, has, however, complained repeatedly before this Court in different proceedings including the proceeding of contempt, now pending before the Hon’ble Apex Court, that the petitioner is not cooperating with the investigation process.

The background, which we get of this case arises from one writ petition, being no. W.P. (C) 413 of 2013, which was filed before the Hon’ble Supreme Court with other writ petitions and the Hon’ble Apex Court by a judgment and order dated 9th May, 2014 directed transfer of the investigation from the State Agency to the Central Bureau of Investigation (CBI) under Delhi Police Establishment Act, after having considered the magnitude of the offence, interstate ramification, plight of investors, and the need for swift and efficient investigation.

The application for anticipatory bail discloses that the petitioner all throughout was under protective order of the Hon’ble Apex Court, but because of intervention of certain untoward incident, occurred on 3rd February, 2019, against which the contempt petition was moved by the CBI before the Hon’ble Apex Court, the protective cover was sought to be withdrawn on the prayer of CBI. The protective cover granted on 05.02.2019 was withdrawn by the Apex Court on 17.05.2019. While passing this order the Hon’ble Apex Court observed as follows:

“Therefore, in the given facts, we would withdraw the protection given to Mr. Mr. Rajeev Kumar, former Commissioner of Police, Kolkata, vide our order dated

February 05, 2019 restraining the CBI from arresting him and thereby, leave it open to the CBI to act in accordance with the law. At the same time, we direct that the interim order dated February 05, 2019 would continue for a period of seven days from the date of pronouncement of this order to enable Mr. Rajeev Kumar to approach competent Court for relief, if so advised. The aforesaid directions would be in consonance with the decision in A.R. Antulay v. R.S. Nayak and Another, (1988) 2 SCC 602, which mandates that the procedure established in law should be strictly complied with and should not be departed from to the disadvantage or detriment of any person. We clarify that we have not made any comments on the merits of the contentions and the reasons recorded in the present order would not be a ground to accept or reject the request of custodial interrogation or grant of protection, if any such application/petition is moved.”

We have been given to understand by the parties before us that the said Contempt petition is still pending before the Hon’ble Apex Court. There was a controversy regarding the power and function between the State Police and the CBI. The conflict regarding calling upon the State Police Officials to CBI and the CBI Officials to State assumed a critical dimension. When by order dated 05.02.2019 the Apex Court observed “However, we make it clear that no coercive steps including arrest shall be taken against the Commissioner of Police. To avoid all unnecessary controversy we direct the Commissioner of police

to appear before the Investigating agency in Shillong, Meghalaya on such date as may be fixed.”

The controversy regarding non-cooperation continued even after the petitioner subjected himself for questioning session in Shillong, which continued from 09.02.2019 to 13.02.2019 consuming a period of 40 hours (approx).

It may not be out of place to mention that the Hon’ble Apex Court also passed an order on 16th July, 2018 regarding certain things, which are important to be taken note of while considering this application of the petitioner under Section 438 of the Code of Criminal Procedure. “It is not happy state of affairs that CBI Officers should be called by the State Police; they have to work in tandem with each other is the exception of the Court as per investigation of the Criminal Case is required; however, in the main case since this Court had confined itself to the investigation to be made by the CBI, there are certain other matters with respect to investigation which equipments like laptop, mobile phones etc. are required for this Court to go into. It is not the object of this Court to adjudicate upon such issues on the first instance. Since the investigation is pending it would be open for the CBI, in case any obstructions is faced by its officers, similarly, in case the State machinery had no objection, they are free to approach the High Court at Calcutta.

It was submitted that under the guise of an order of 23rd October

2017 the State Police had asked for certain details from the CBI in case

CBI agreed by the said order we are gave liberty by filing appropriate petition in accordance with law within a period of six weeks in the High Court.”

In consonance of this direction, nothing is brought to our notice that the liberty granted to either of the parties was ever exercised having understood the purport of the order conveyed therein. After the interrogation in Shillong, spanning over a period of 40 hours, this petitioner in compliance of the order passed by the Hon’ble Apex Court, offered himself to be interrogated further by the CBI on 17.06.2019 in connection with this case in Calcutta, which, however, continued covering another session of four hours (approx).

Mr. Dastur, appearing for the opposite party, CBI, has pointed out before this Court by filing certain documents in compilation, being the relevant extract from the Case Diary together with an index in front containing 9 serials with pages from 1 to 138, adverting to seizure list dated 17th April, 2013, on the apparent time discrepancies, shown in the seizure and that of the relevant G.D. Entry of the P.S. recorded for the purpose. Referring to this anomaly in the Case Diary and the seizure list, Mr. Dastur further submits that this is a serious contradiction amongst others, for which petitioner’s role is to be found out by custodial interrogation confronting with the materials already collected, irrespective of the repeated questioning sessions, held earlier.

We, however, do not justify custodial interrogation merely on this score as submitted by Mr. Dastur in the absence of some other convincing materials. According to our considered view, such discrepancy could be appropriately decided at the time of trial.

The prime allegation against the petitioner, as submitted by Mr. Dastur learned Senior Advocate appearing for the CBI is that the petitioner deliberately showed his non-cooperation with the ongoing investigation, questioning the notice since beginning, alleging biasness in the investigation, wrongly interpreting the text of the notice, thereby exposed his arrogancy, obstinancy and defying attitude to obey the terms of the notice, upon advancing frivolous excuses on innumerable counts, and further deliberately tampered and doctorred the CDRs with a delay of about four years, after it was requisitioned, with sole intention of destroying and damaging the material evidence, extending his hands in glove with some other men of potentiality including political dignitaries, so as to give a go by to the allegations levelled against him, and to gloss over some other designed personalities. He has also pointed out to the notices served upon the petitioner and his attitude to evade those notices by taking shelter under the law. It may not be out of place to mention that after such notices under Section 160 of the Code of Criminal Procedure was served upon the petitioner by the investigating agency to examine him, he filed an application under Section 482 of the Code of Criminal Procedure being CRR no. 1308 of 2009, in which the petitioner challenged the proceeding itself and prayed for quashing of the same.

The said CRR 1308 of 2019 was, ultimately, held to be not maintainable at the instance of a third party meaning thereby, the petitioner had no locus standi to pray for quashing of instant criminal proceeding, when apparently a notice under Section 160 of Cr.P.C. was served upon the petitioner calling upon his co-operation to unearth the prosecution.

Mr. Roy, appearing for the petitioner submits that, however, the petitioner was not appropriately advised and wrong forum was chosen by him. Protection which was granted initially in CRR 1308 of 2019 passed by the Single Bench of our High Court, ultimately, stood vacated by the final decision, given on 13th September, 2019.

It is the contention of Mr. Dastur, that after the said CRR was finally disposed of and having lost the protective cover, the petitioner even did not appear before the investigating agency, pursuant to the notice being served afresh upon him requiring his presence on subsequent dates, as mentioned in the notices, found in the compilation, placed before us by the CBI for consideration.

Mr. Roy, however, attempted to justify that the petitioner was on leave till 25th September, 2019 with due intimation to CBI and the instant application for anticipatory bail was taken up for hearing on urgent basis on 26th September, 2019.

Mr. Dastur, further submits that if this application under Section 438 is allowed giving the petitioner protection against

custodial interrogation the investigation which reached certain stage would be grossly hampered.

Mr. Roy in support of his submission has placed reliance on two decisions:

• Siddharam Satlingappa Mhetre –Vs. – State of Maharashtra reported in (2011) 1 SCC 694 &

• Santosh s/o Dwarkadas Fafat –Vs. – State of Maharashtra reported in (2017) 9 SCC 714.

Mr. Dastur appearing for the CBI has relied on three decisions:

• State represented by the CBI –Vs. – Anil Sharma reported in (1997) 7 SCC 187;

• Sudhir –Vs. – State of Maharashtra & Anr. reported in

(2016) 1 SCC 146 &

P. Chidambaram –Vs. – Directorate of Enforcement Published in 2019 SCC online SC 1143

In order to correctly assess the prayer for pre-arrest bail, and the ratio decided by the Hon’ble Apex Court, we deem it appropriate to first consider the decision, which have been relied on by Mr. Dastur.

The first decision delivered in State represented by CBI (supra), relied on by Mr. Dastur, is on the issue of custodial interrogation for eliciting more useful information and material from the interrogatee. Mr. Dastur has drawn our attention to paragraphs 4, 6 and 7. This decision is, however, distinguishable not only from the facts, but also conspicuously differentiable from the judgment, delivered by the Hon’ble Apex Court in the case of Siddharam Satlingappa Mhetre (supra), which basically concerned the personal liberty of a person available under Article 21 of the Constitution of India in context with the decision of the Apex Court, delivered in the case of Gurbaksh Singh Sibbia Etc –Vs. – State Of Punjab reported in (1980) 2 SCC 565. In the case referred above by Mr. Dastur there was allegation levelled by CBI that the respondent amassed wealth far in excess of his known sources of income rendering him to be subjected to a prosecution under Section 13(2) of the Prevention and Corruption Act, 1988. The court at the first instance granted pre-arrest bail, which was cancelled by the concerned High Court and cancellation was however, affirmed by the Hon’ble Apex Court observing therein that the respondent having held a high office, the chance of exercising his influence would create a great handicap to the investigating agency, while interrogating a person, already armed with an order of anticipatory bail, because the custodial interrogation being qualititably more elicitation oriented and that questioning a suspect who is well protected with a favourable order under Section 438 of the Code would render the questioning a mere ritual. The petitioner herein involved in this case not only once, but in all twice subjected himself for questioning purpose covering a period of 44 hours (approx) meaning thereby he had consciously offered himself to be interrogated in the interest of ongoing investigation.

The next decision relied on by Mr. Dastur in Sudhir (supra) relates to case where allegations are of serious nature including corruption and mis-appropriation of public fund requiring custodial interrogation. The appeal before the Hon’ble Apex Court was against the order of cancellation of bail granted by the High Court. The case is distinguishable on fact, that in the cited decision the two First Information Reports were registered against the accused/appellants against themselves with serious allegations of criminal mis-appropriation of funds, released for implementation of scheme of drinking water in the villages, in the context with which, the Apex Court felt the necessity of custodial interrogation for the conduct of the appellants causing the investigation to hold up for sometimes, and upon consideration of such conduct, the anticipatory bail was cancelled observing therein that the investigation could not be proceeded in the event of the appellants being armed with an anticipatory bail. The gist of the materials being extract of the case diary, placed before us in the form of compilation, as mentioned hereinabove, do not conspicuously transpire anything that at the instance of the petitioner the investigation got halted for his active contribution, because investigation has extensively dealt with to reveal the scam examining several persons not only from the police but also from the side of the State.

In context of that fact, the Hon’ble Apex Court considering the ratio of the decision in Gurbaksh Singh Sibbia (supra) has held that the relief of anticipatory bail cannot be said to be barred merely for

the reasons that the allegations relate to economic offences or corruption and clarified that where the allegations are mala fide, prayer for anticipatory bail can be accepted.

Considering the ratio of Siddharam Satlingappa Mhetre (supra) the Hon’ble Apex Court discussed in paragraph 112 thereof, which stated “While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused.”

In the case of P. Chidambaram (supra), unlike the case in hand, there is no allegation of money laundering proceeds of the crime as against the present petitioner seeking pre-arrest bail. The significant aspect to be kept in mind is that petitioner has come before the Court with a prayer for anticipatory bail even after subjecting himself for interrogation/ questioning not only once in Shillong, but also here in Kolkata to facilitate investigation. It is thus, not the position that petitioner purposefully kept himself concealed avoiding the desired questioning by CBI. This case is also distinguishable against the petitioner, who was subjected to repeated interrogation, as pointed out earlier, alleging to have made concealment of the materials, yet to be collected. The purpose of custodial interrogation being to elicit materials which may lead to recovery of relevant information, in our considered perception, needs to be critically appreciated in context with the peculiarity of the circumstances involved in this case, wherein petitioner offered himself for interrogation on repeated occasions, when investigating agency was left with sufficient opportunity to collect and/or derive relevant information in the interest of unearthing the prosecution.

We have considered the submissions of Mr. Roy and the principles laid down in the decisions on which he placed reliance. The case of Siddharam Satlingappa Mhetre (supra) has been cited by Mr. Roy, to enlighten the Court for the consideration of the parameters, laid down by the Supreme Court. In the said decision, the Hon’ble Apex Court observed that in the earlier Constitution Bench decision in Gurbaksh Singh Sibbia Etc –Vs. – State Of Punjab reported in (1980) 2 SCC 565 it was held that a person seeking anticipatory bail is still free man, entitled to the presumption of innocence, and the person seeking anticipatory bail, submit himself to the restraint and conditions on his freedom, by accepting the conditions which the Court may deem fit to impose any consideration of the assurance that if he is arrested, he shall be enlarged on bail. We also find that the Hon’ble Apex Court observed that the appropriate course of action ought to be that after evaluating averments and accusation available on record, if the Court is inclined to grant anticipatory bail then an interim bail, can be granted and notice be issued to the Public Prosecutor. After hearing the Public Prosecutor, the Court may either reject the bail application, or confirm initial order of granting bail. The Court would certainly be entitled to impose conditions for grant of anticipatory bail. The Public Prosecutor or the complainant would be at liberty to move the same Court for cancellation or modifying the conditions of bail any time, if liberty granted by the Court is misused.

Therefore, the bail granted by the Court should ordinarily continue till trial of the case. The provisions of Section 438 of the Code of Criminal Procedure is not an unfettered power granted in favour of the accused rather the same is very restricted and subject to reasonable restrictions.

Section 438 Cr.P.C. itself supplied the conditions which the Court can impose at the time of granting bail to the petitioner. Even the Court can impose such other condition, if it thinks fit and proper. Considering the application for anticipatory bail the appropriate Court while dealing with a regular application for anticipatory bail should come to an independent conclusion whether under the facts and circumstances and the available materials, the prayer for anticipatory bail should be allowed or not.

In the aforesaid decision of Siddharam Satlingappa Mhetre (supra) the principles and parameters have been laid down in paragraphs 109 and112 respectively and the same are set out below:

“Para 109: A good deal of misunderstanding with regard to the ambit and scope of section 438 Cr.P.C. could have been avoided in case the Constitution Bench decision of this court in Sibbia’s case was correctly understood, appreciated and applied. This Court in the Sibbia’s case laid down the following principles with regard to anticipatory bail:

a) Section 438(1) is to be interpreted in the light of Article 21 of the Constitution of India.

b) Filing of FIR is not a condition precedent to exercise of power under section 438.
c) Order under section 438 would not affect the right of police to conduct investigation.

d) Conditions mentioned in section 437 cannot be read into section 438.

e) Although the power to release on anticipatory bail can be described as of an “extraordinary” character this would “not justify the conclusion that the power must be exercised in exceptional cases only.” Powers are discretionary to be exercised in the light of the circumstances of each case.
f) Initial order can be passed without notice to the Public Prosecutor. Thereafter, notice must be issued forthwith and question ought to be re- examined after hearing. Such ad interim order must conform to requirements of the section and suitable conditions should be imposed on the applicant.

Para 112: The following factors and parameters can be taken into consideration while dealing with the anticipatory bail:

i. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;

ii. The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;

iii. The possibility of the applicant to flee from justice;

iv. The possibility of the accused’s likelihood to repeat similar or the other offences.

v. Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.

vi. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.

vii. The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;

viii. While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;

ix. The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;

x. Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.”

In paragraph 113, however, the Supreme Court more specifically stated that “arrest should be the last option and it should be restricted to those exceptional cases where arresting the accused is imperative in the facts and circumstances of that case. The Court must carefully examine the entire available record and particularly the allegations which have been directly attributed to the accused and these allegations are corroborated by other material and circumstances on record.”

The ratio of the decision arising out of Siddaram Mahtre (supra), being basically founded upon Gurbaksh Singh Sibbia (supra), the same was reinforced in the case of Bhadresh Bipinbhai Sheth vs State Of Gujarat & Anr, reported in (2016) 1 SCC 152 which has, however, not been cited by either of the parties fighting over the issue before us.

When the apex Court granted protection to the petitioner, by an order dated 05.02.2019 prohibiting CBI from arresting the petitioner, the interrogation/investigation in respect of CDRs with insufficient particulars being sent on 28.06.2018, is expected to have been directed towards securing explanation from the petitioner as regards the alleged delay caused in sending the CDRs together with the alleged suppression, and also for causing disappearance of material evidence in connivance with some designed persons. No new material was, however, sent to CBI at the instance of the petitioner subsequent to 28.06.2018 creating a confusion, or a further mismatch with the materials pertaining to the CDRs already sent. For the alleged discrepancies in the CDRs, the CBI had already collected the relevant information from the service providers, applicable to the case and compared the same with that of the CDRs with insufficient particulars. In paragraph 7 of the additional affidavit, dated 18th February, 2019, filed on behalf of the CBI in connection with the contempt petition pending before the Apex Court, the CBI had specifically contended that the CDRs of the accused, when analysed by the CBI were found to be tampered/doctorred and the material evidence had been destroyed. It was also contended therein that comparison of the doctorred/tampered CDRs, given by petitioner and the CDRs obtained by the CBI from the service providers left no manner of doubt that the CDRs handed over by the petitioner on 28.06.2018 were tampered and doctored. That being the position, relying upon such assertion of the CBI, made in paragraph 7 of such affidavit, referred above, the scope of requirement of any extensive investigation taking the petitioner into custody has been minimised. As has been brought to our attention by the learned advocate for the CBI that the petitioner always attempted to obfuscate the investigation revealing his strong sense of avoidance to the notices and in doing so, the order dated 06.12.2018 and 18.12.2018 passed in CRR 2456 of 2018 has been wrongly interpreted upon misconstruction of such orders in as much as such orders had no reasonable nexus with the instant case. Rightly attention of the Court has been drawn by the learned Senior Advocate for the CBI to the communication issued to petitioner on the basis of misconstruction of the orders dated 06.12.2018 and 18.12.2018 rendering the petitioner to become hostile to the terms of the notice. True it is that the petitioner is the top cop of the State, and at the same time it is also true that he has to rely upon the communication, made to him legally from the State authorities, responsible to make communication. If there be any irregularities in the matter of misconstruction of such orders, pursuant to the valid legal communication being made to the petitioner, the petitioner cannot be made to suffer the consequence, that arose beyond his control.

Notice under Section 160 of the Cr.P.C. describing the petitioner to be a witness was served on innumerable occasions. Learned advocate for both the parties are ad idem to the stand that so long the proceeding pending before the High Court in connection with CRR 1308 of 2019 before a learned Single Judge of this Court, the status of the petitioner was not above the witness. The situation turned a dramatic turn, when the CBI prayed for issuance of a warrant of arrest before the learned Additional Chief Judicial Magistrate, Alipore, South 24 Parganas, which was rejected, accepting the petitioner to be an accused involved in this case. It is, therefore, quite relevant to take note that till 13.09.2019, the petitioner, whose status remained as witness suddenly transformed into the category of accused, presumably with the collection of startling/clinching materials, that have been collected in the meantime against the petitioner requiring custodial interrogation, is conspicuously absent. The words “any person” appearing in Sections 160 and 161 Cr. P.C. are wide enough to include the person, who subsequently becomes an accused in course of investigation, and such proposition came to be decided in the case of Mahabir Mandal And Others –Vs. – State Of Bihar reported in AIR 1972 SC 1331.

Therefore, the status of a witness is convertible to the accused during the course of investigation subject to the collection of independent sufficient incriminating materials against the petitioner, which must be in the nature of startling and clinching in sense.

Much has been emphasized by the learned advocate for the petitioner regarding the antecedent of petitioner for his avoidance to the notice on innumerable occasions, and even after making a breach of the conditions while enjoying interim protection in connection with CRR 1308 of 2019 limiting his movement and further confining him to his residence, but uptil now there is nothing produced before us to challenge the order passed in CRR 1308 of 2019, which paves the way for us to conclude that disputing with the conditions and even for a violation of the conditions of the interim protection, the CBI had never challenged taking out an appropriate application, in spite of the liberty being granted to that effect, and that apart in pursuance of liberty being granted by the Apex Court, while withdrawing interim protection against the petitioner to take appropriate steps, the CBI has only moved before the concerned Magistrate with a prayer for issuance of non-bailable warrant.

Antecedent, if isolatedly viewed of recent past of a person, without looking into the entire tenure of the petitioner, when he continued to discharge his police function, proper reflection of antecedent cannot be perfectly ascertained.

In order to unfurl the larger conspiracy to prevent unearthing money, there has been extensive repeated questioning session as regards the petitioner and several persons were also subjected to interrogation for their respective role in the scam, and upon consideration of the materials produced before us being the relevant extract of the Case Diary, shown in the compilation referred above, we have hardly any scope to assume that it is the petitioner only clogging the investigation and without which the investigation is supposed to face the undesirable consequence.

Before this judgment is delivered, we ourselves made threadbare discussion over all the pros and cons of the matter relating to the scope of grant or refusal of the prayer for anticipatory bail. At the commencement of the hearing, we pointed out to the learned advocates for both the sides requesting them to make their precise argument only on the scope of Section 438. While passing the judgment we have persuaded ourselves to confine within the statutory limit of Section 438 of the Code of Criminal Procedure. We have reached a consensus in passing this judgment having equal contribution.

Having considered the rival contentions of the parties and the materials placed before us, in our honest effort while ensuring to strike a balance between the individual’s right to personal freedom and the right of the investigation agency to interrogate the petitioner as to the materials so far collected, we are of the considered view that this is not an appropriate case, when custodial interrogation would be justified.

Consequently, the custodial interrogation, as sought to be enforced by the CBI in the given set of circumstances, is not encouraging one, as it does not inspire confidence of this Court to justify custodial interrogation of the petitioner in this case, when he has rendered his cooperation substantially in the interest of investigation.

Accordingly, we direct that in the event of his arrest the petitioner shall be released on bail upon furnishing a bond of Rs.50,000/- with two sureties of like amount each, one of whom must be local having landed property within the jurisdiction of Kolkata, and he shall comply with the conditions as laid down in Section 438(2) of the Code of Criminal Procedure, and on further condition that he will render cooperation to the investigating officer by physically presenting himself for interrogation before the CBI at Kolkata, as and when demanded, but at least upon 48 hours prior notice being served upon him.

We make it clear that non-observance of the conditions so imposed, apart from the conditions imbeded in Section 438(2) Cr. P.C., as imposed hereinabove, would enable the CBI to seek cancellation of the bail here in granted without making any reference to the Court and the learned Court below would be at his liberty to go for cancellation on a proven breach of the condition without making reference to this Court.

The application for anticipatory bail stands allowed.

CRM no. 9230 of 21019 is thus, disposed of.

The Criminal Section is directed to send down the lower Court records together with a copy of the judgment forthwith to the concerned learned trial Court.

Urgent Photostat certified copy, if applied for, be delivered to the learned counsel for the parties, upon compliance with all usual formalities.

I agree.

(Subhasis Dasgupta, J.) (Sahidullah Munshi, J.)

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

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

IN THE HIGH COURT AT CALCUTTA

Criminal Revisional Jurisdiction

C.R.R. 1308 of 2019

With

CRAN 2331 of 2019

Present: The Hon’ble Justice Madhumati Mitra

Rajeev Kumar

-Versus-

Central Bureau of Investigation (CBI) & Anr.

Advocate for the Petitioner

: Mr. Milon Mukherjee,

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

Advocate for the C.B.I.

: Mr.Y.J.Dastoor,

Mr. Anirban Mitra,
Mr. Samrat Goswami,

Mr. Amit Halder.

Heard on :

17.07.2019,18.07.2019,19.07.2019,

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

Judgment on : 13.09.2019

Madhumati Mitra, J. :

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Paragraph 6 is as under:-

“6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders.”

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

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

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

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

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

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

Paragraph 6 of the said judgment is as under:-

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

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

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

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

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

was pleased to observe as under:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(iii) to otherwise secure the ends of justice.

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

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

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

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

Interim order stands vacated.

Re: CRAN 2331 of 2019

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

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

(Madhumati Mitra, J.)

13/09/2019

P. CHIDAMBARAM Vs. CENTRAL BUREAU OF INVESTIGATION [DHC]-20/08/2019

Pre-arrest is not meant for high profile economic offenders. Time has come to recommend to the Parliament to suitably amend the Law to restrict the provisions of pre-arrest bail and make it inapplicable to economic offenders of high profile cases like the instant one.

Acts : Section 120B r/w Section 420 of IPC and Section 8 and Section 13 (1)(d) r/w Section 13(2) of the PC Act

IN THE HIGH COURT OF DELHI AT NEW DELHI

Reserved on: 11th March, 2019

Pronounced on: 20th August, 2019

BAIL APPLN. 1316/2018 & Crl. M. A. 10976/2018

P. CHIDAMBARAM ….. Petitioner

Through: Mr. Kapil Sibbal Mr. Abhishek
Manu Singhvi, Mr. Dayan
Krishnan and Mr. Mohit Mathur,
Senior Advocates with Mr. P. K.
Dubey, Mr. Arshdeep Singh, Mr.
Adit Pujari, Mr. Amit Bhandari,
Mr. Akshat Gupta, Mr. Avishkar
Singhvi, Mr. AyushAgarwal, Ms.
Ishita Garg, Mr. Sanjeevi Seshadri
& Mr. Harpreet Kalsi, Advocates

Versus

CENTRAL BUREAU OF INVESTIGATION ….. Respondent

Through: Mr. Tushar Mehta, Solicitor
General with Mr. K. M. Natraj,
Additional Solicitor General and
Mr. Amit Mahajan, Central
Government Standing Counsel
with Mr. Rajat Nair, Advocate

And

BAIL APPLN. 1713/2018 & Crl. M. (B) 1163/2018

P. CHIDAMBARAM ….. Petitioner

Through: Mr. Kapil Sibbal Mr. Abhishek
Manu Singhvi, Mr. Dayan
Krishnan and Mr. Mohit Mathur,
Senior Advocates with Mr. P. K.
Dubey, Mr. Arshdeep Singh, Mr.Adit Pujari, Mr. Amit Bhandari,
Mr. Akshat Gupta, Mr. Avishkar
Singhvi, Mr. AyushAgarwal, Ms.
Ishita Garg, Mr. Sanjeevi Seshadri

& Mr. Harpreet Kalsi, Advocates

Versus

DIRECTORATE OF ENFORCEMENT, DELHI ….. Respondent

Through: Mr. Tushar Mehta, Solicitor General with Mr. K. M. Natraj, Additional Solicitor General and Mr. Amit Mahajan, Central Government Standing Counsel with Mr. Rajat Nair, Advocate

CORAM:

HON’BLE MR. JUSTICE SUNIL GAUR

ORDER

1. In the above captioned first application [Bail Appln. 1316/2018], petitioner seeks pre-arrest bail in FIR No. RC220-2017-E-0011, under Section 120B read with Section 420 of IPC and Sections 8 and 13 (2) r/w Section 13(1) (d) of The Prevention of Corruption Act, 1988 (henceforth referred to as the ‘PC Act’), whereas in the above captioned second application [Bail Appln. 1713/2018], petitioner seeks pre-arrest bail in ECIR/07/HIU/2017, registered under the provisions of The Prevention of Money-Laundering Act, 2002 (henceforth referred to as the ‘PMLA’).

2. With the consent of learned counsel representing both the sides, these applications have been heard together and are being disposed of by this common order.

3. It is the case of petitioner that M/s INX Media Pvt. Ltd. sought approval for FDI in a proposed TV channel upto 46.216 percent of the issued equity capital. The policy allowed investment upto 74 percent of equity. Foreign Investment Promotion Board (FIPB) Unit examined the proposal, found it to be in order and submitted the case to the Finance Minister. FIPB consisted of six secretaries to the Government of India and was chaired by the Secretary, Economic Affairs. FIPB unanimously recommended the proposal and placed it before the Finance Minister for his approval, along with several other proposals. In May, 2007, the Finance Minister (i.e. the petitioner herein) granted his approval in the normal course of official business.

4. According to learned senior counsel for petitioner, ten years later, based on alleged ‘oral source of information’, Central Bureau of Investigation (CBI) recorded an FIR on 15th May, 2017 against four companies, Karti P. Chidambaram (i.e. petitioner’s son), unknown officers/officials of the Ministry of Finance and other unknown persons under Section 120B r/w Section 420 of IPC and Section 8 and Section 13 (1)(d) r/w Section 13(2) of the PC Act. The petitioner was not named as an accused or suspect; there is no allegation against the petitioner in the body of the FIR. The allegation in the FIR was that M/s INX Media Pvt. Ltd. had made down-stream investment without obtaining prior approval of the FIPB and, in order to regularize that investment, had approached

the petitioner’s son and made a payment of ₹10 Lakh to another company allegedly associated with petitioner’s son. It is submitted that petitioner learnt that it is the case of the said company that it had received the said payment towards consultancy work and further, the petitioner’s son was never a shareholder or Director of the said company. It is further submitted by petitioner’s counsel that ECIR/07/HIU/2017 is baseless, politically motivated and an act of vendetta against petitioner and his son, because petitioner is a vocal critic and opponent of the present Central Government both inside Parliament and outside. It is also submitted that petitioner is a sitting member of Rajya Sabha.

5. According to learned senior counsel for petitioner, based on ECIR/07/HIU/2017, registered by the CBI, Enforcement Directorate (ED) recorded an ECIR, which ED has maintained is an internal record. It is submitted by learned senior counsel for petitioner that copy of the said ECIR has not been given to petitioner. However, petitioner understands and states that ECIR is virtually the same as an FIR.

6. It is a matter of record that while entertaining both these bail applications, interim protection was granted to petitioner subject to joining investigation and that petitioner had joined the investigation. According to senior counsel for petitioner, respondent-CBI has sought sanction to prosecute petitioner in January, 2019, which means that draft charge-sheet has been put up before the authorities concerned to obtain sanction to prosecute petitioner. So, it is submitted that investigation by CBI is complete and there is no ground for ED to oppose the bail or to seek petitioner’s custody. It is urged that since petitioner is cooperating in investigation, therefore, there is no ground to deny bail to petitioner.

7. Learned senior counsel for petitioner vehemently argued that there is no averment or allegation in the FIR that the petitioner accepted or

agreed to accept any gratification as a motive or reward for inducing any public servant and hence, prima facie the accusation under Section 8 of PC Act does not apply to the case of petitioner. It is further submitted that since offence under Section 8 of PC Act is not made out, therefore, the ED cannot lodge money laundering case against petitioner. Learned senior counsel for petitioner vehemently submits that offences under Sections 420/120B IPC and under the PC Act were not Scheduled Offences under the PMLA and so, petitioner cannot be prosecuted under the provisions of PMLA. It is pointed out by learned senior counsel for petitioner that minimum threshold for ED to acquire jurisdiction at the relevant time was ₹30 Lakh and in the instant case, there is no averment of any payment apart from ₹10 Lakh approximately, which was allegedly paid by M/s INX Media Pvt. Ltd. to M/s Advantage Strategic Consulting Pvt. Ltd., with which petitioner is not concerned whatsoever in any manner. The precise argument of learned senior counsel for petitioner is that if any of the offences are applied qua petitioner, it would amount to giving retrospective application to the provisions of the PMLA which would be violative of petitioner’s fundamental rights enshrined under Article 20(3) of the Constitution of India, 1950. To submit so, reliance is placed upon decision in Arun Kumar Mishra Vs. Directorate of Enforcement 2015 SCC OnLine Del 8658.

8. It was pointed out by learned senior counsel for petitioner that in the case of co-accused Karti Chidambaram, this Court had stayed the arrest of petitioner in proceedings under the PMLA and so, petitioner is also entitled to similar relief. Learned senior counsel for petitioner

submits that there are no allegations of petitioner tampering with the evidence and nothing is to be recovered from petitioner and that co-accused of petitioner are already on anticipatory bail or statutory bail and thus, petitioner deserves to be granted pre-arrest bail, as his antecedents are impeccable.

9. It was also pointed out that petitioner is a sitting member of Rajya Sabha and there are no chances of his fleeing from justice. According to learned senior counsel for petitioner, offence of money laundering is a non-cognizable offence and investigation of ED is in violation of

petitioner’s fundamental rights. It is further submitted by learned senior counsel for petitioner that amendment made in the year 2018 in the PMLA does not restore Sub-Clause II of Section 45(1) of PMLA. So, it is submitted that petitioner deserves the concession of pre-arrest bail. In support of above submissions, reliance is placed upon Supreme Court’s decisions in Central Bureau of Investigation Vs. Ashok Kumar Aggarwal 2014 (14) SCC 295; Arun Kumar Mishra Vs. Directorate of Enforcement 2015 SCC OnLine Del 8658; Bhadresh Bipinbhai Sheth Vs. State of Gujarat and another (2016) 1 SCC 152; Nikesh Tarachand Shah Vs. Union of India and another (2018) 11 SCC 1 and decisions of High Court of Andhra Pradesh in W.P. 17525/2014 titled as Tech Mahindra Limited Vs. Directorate of Enforcement; CRLRC No. 3222/2016 titled as Ashok Kumar Jain Vs. Asst. Director, Hyderabad; W.P.No.37487/2012 titled as M/S Satyam Computer Services Ltd. Vs. Directorate of Enforcement and decision of High Court of Mumbai in Bail Appl. No. 286/2018 titled as Sameer M. Bhujbal Vs. Assistant Director, Directorate of Enforcement &

Ors. and decision of High Court of Madhya Pradesh in M.Cr.C.No.34201/2018, titled as Vinod Bhandari Vs. Assistant Director, Directorate of Enforcement.

10. On behalf of respondents, it is submitted that Section 19 of PMLA empowers the ED to arrest petitioner on the basis of material collected so far and respondents have reason to believe that petitioner is guilty of offences of money laundering, cheating etc. and some of the proceeds of crime have been already identified and have been attached vide provisional attachment order of 10th October, 2018 and that petitioner’s

custodial interrogation is necessary in order to trace out further proceeds of the crime. According to respondents, petitioner’s son Karti Chidambaram is involved in INX Media case, which is being currently investigated by CBI and ED and that petitioner’s son has committed offences under the IPC and PMLA at the behest of petitioner. According to learned Attorney General of India, material on record manifestly indicates that petitioner was personally involved in the act of money laundering and he is also found to be a beneficiary of the Proceeds of Crime and to unearth the money trail, custodial interrogation of petitioner is essential. Learned Attorney General of India has sought to rely upon the diary of proceedings of investigation and has handed over a copy of the diary of proceedings of investigation in a sealed cover to the Court for perusal while seeking to maintain confidentiality in respect of these case diaries. Highlighting the non-cooperation in investigation by petitioner, learned Attorney General of India had vehemently submitted that in the absence of custodial interrogation of petitioner, investigation in this case

cannot be taken to its logical conclusion and in view of nature of gravity of offence, custodial investigation of petitioner be granted. It is submitted that petitioner is giving evasive replies and is not cooperating in the investigation while he is under the protective umbrella of interim orders.

11. Reliance is place upon decision in CBI Vs. Anil Sharma (1997) 7 SCC 187 to justify custodial interrogation of petitioner by pointing out that interrogation conducted under the protection order of the Court has proved to be a mere ritual in the instant case. It is also submitted that petitioner cannot claim parity with co-accused Karti Chidambaram, as the said co-accused had committed the offence in question at the behest of petitioner. In support of their case, respondents rely upon decisions in

State of Gujarat Vs. Mohanlal Jitamalji Porwal & Anr. (1987) 2 SCC 364; Prahlad Singh Bhati Vs. NCT, Delhi & Anr. (2001) 4 SCC 280 Ram Pratap Yadav Vs. Mitra Sen Yadav And Anr. (2003) 1 SCC 15; Kalyan Chandra Sarkar Vs. Rajesh Ranjan @ Pappu Yadav & Anr. (2004) 7 SCC 528; Anwari Begum Vs. Sher Mohammad & Anr. (2005) 7 SCC 326; Prasanta Kumar Sarkar Vs. Ashis Chatterjee & Anr. (2010) 14 SCC 496; Y.S. Jagan Mohan Reddy Vs. CBI (2013) 7 SCC 439; Gautam Kundu Vs. Directorate of Enforcement (2015) 16 SCC 1; Sunil Dahiya Vs. State 2016 SCC Online Del 5566; Suresh Thimri Vs. State of Maharashtra 2016 SCC OnLine Bom 2602; Chhagan Chandrakant Bhujbal Vs. Union of India 2016 SCC OnLine Bom 9938; State of Bihar & Anr. Vs. Amit Kumar @ Bachcha Rai (2017) 13 SCC 751 and Rohit Tandon Vs. Directorate of Enforcement (2018) 11 SCC 46.

After having heard both the sides at length and on perusal of the FIR of this case, short reply of respondent-CBI, material on record and the decisions cited, I find that from the material collected by the Investigating Agency, it prima facie appears that ₹3 Crores approximately has come into the account of M/s Advantage Strategic Consulting Pvt. Ltd. (ASCPL) and other concerns during the tenure of the petitioner as the Finance Minister. The table below shows the payments made from Span Fibre and Satyam Fibres to ASCPL and associated

  1. entities:-
BROKER YEAR PERIOD TOTAL TDS AMOUNT Paid by
NAME Amount DEDUCTED PAID in ₹
in ₹ @
ASCPL 2007-08 Q1 3875077 439046 3436031 Span
2007-08 Q2 3462875 392344 3070531 Span
2007-08 Q3 2617386 296550 2320836 Span
2007-08 Q4 2573662 291596 2282066 Span
TOTAL 12529000 1419536 11109464
KRIYA 2007-08 Q1 2662667 301680 2360987 Span
FMCG
DISTRIBUTO
RS PVT. LTD.
2007-08 Q2 2259514 256003 2003511 Span
2007-08 Q3 1981732 224530 1757202 Span
2007-08 Q4 1331656 150876 1180780 Span
TOTAL 8235569 933089 7302480
CBN 2007-08 Q1 3186072 360982 2825090 Span
PLACEMENT
&
MANAGEMEN
T CENTRE
2007-08 Q2 3109656 352324 2757332 Span
Q3 1544592 175002 1369590 Satyam
Q4 2257155 255735 2001420 Satyam
TOTAL 10097475 1144043 8953432
Grand 30862044 3496668 27365376/-
Total

13. From the investigation conducted, it appeared that ASCPL and other concerns are beneficially controlled and managed by Karti P. Chidambaram. The beneficial ownership of Shri Karti P. Chidambaram in ASCPL and associated entity becomes clear from the projected facts enumerated as under:-

(a) In the year 2009-10, Shri Karti P. Chidambaram secured mandate from Vasan Healthcare to raise funds through Spark Capital from which Karti P. Chidambaram demanded money and in this connection several emails were exchanged between Karti P. Chidambaram and K. Ramamkrishnan of Spark Capital. Later on, Spark Capital received funds from three entities i.e. M/s Advantage Strategic Consulting Pvt. Ltd., Kriya FMCG and Northstar as per the details given below:

S. Date Name  of the Invoice Description Value
No. Entity
1. 20.03.2009 M/s Advantage Consultancy on new 9,50,000/-
Strategic business opportunities
Consulting for the YE 31.03.09
Pvt. Ltd.
2. 16.03.2009 M/s Kriya Consultancy on new 7,50,000/-
FMCG business opportunities
Distributors for the YE 31.03.09
Pvt. Ltd.
3. 10.03.2009 M/s Northstar Professional Charges 8,00,000/-
Software towards Legal due
Solution Pvt. Diligence &
Ltd. Researches.
4. 04.01.2010 M/s Northstar Management 12,50,000/-
Software Consultancy Fees
Solution Pvt. towards professional
Ltd. services.

(b) When GIC, a leading global investment firm headquartered in Singapore, wanted to invest in Vasan Healthcare, Karti P. Chidambaram had demanded ₹20 Crores in lieu of shares of ASCPL in Vasan Healthcare for smooth closure of the transaction.

(c) One Shri R. Joseph Kennedy of Blue Bugs was given the task of designing the logo, stationery of M/s Castle Gordon Global Advisory Ltd., UK, development of its website, domain name registration, hosting and email facilities. An invoice of ₹ 46,175/- for the work was raised by Blue Bugs in the name of ASCPL. Shri Mike Nithavrianakis who had allegedly floated M/s Castle Gordon Global Advisory Ltd. is the Director and partner of Shri Karti P. Chidamdaram in M/s Totus Tennis Ltd.

(d) Incorporation expenses of M/s Ausbridge Holding and Investments Pvt. Ltd. (in which Karti P. Chidambaram and Mohanan Rajesh were promoters, directors and shareholders ) were paid by ASCPL vide cheque no. 116868 dated 23.02.2006. Karti P. Chidambaram held 95% shares in Ausbridge in 2006.

(e) Mohanan Rajesh, Director in ASCPL and a schoolmate of Karti P. Chidambaram has disclosed in his statement that on Karti’s instructions

ASCPL allotted 66.67% of the total share to Ausbridge Holding and Investments Pvt. Ltd., a company for purchase of shares of ASCPL was made by Mohanan Rajesh from his personal account and he was later compensated by way of payments from companies controlled by acquaintances of Shri Karti P. Chidambaram.

(f) Ms. Meena Saundarajan, a family friend of Karti P. Chidambaram, had transferred about ₹30 Lakhs to Ausbridge through her companies for purchase of shares of ASCPL on instructions of Karti P. Chidambaram.

(g) Expenses on internet used on the telephone number 9884216000 used by Karti.P Chidambaram.

(h) Expenses on travel by Karti P. Chidambaram and his associates were borne by ASCPL. Also personal expenses of Karti P. Chidambaram were borne by ASCPL viz, repair of his Patek Phillippe watch, hotel stays, meals and tickets for tennis tournaments, paintings seized during searches from the office of Karti P. Chidambaram (Chess Global Advisory Services) etc. Even expenses of Sh. Murali, PA of Karti P Chidambaram were paid by ASCPL.

(i) M/s Northstar Software Solutions Pvt Ltd, a company in which Sh. CBN Reddy was a Director issued invoices for collection of illegal gratification from INX Media in September 2008, after the FIPB approval was granted by Shri P Chidambaram. Sh. CBN Reddy is one of the Directors in ASCPL and also a tennis partner of Karti P.Chidambaram.

(j) Devender Saharia of M/s AGS Health had received ₹11 Crores from M/s ASCPL on instructions of Karti P. Chidambaram in lieu of which Karti P. Chidambaram had got inducted his CA, Mr. S. Bhaskaraman and Mr. CBN Reddy as directors of ASG Health.

(k) Mr. Manoj Mohanka, in his statement recorded on 14.10.2016 in Aircel Maxis case, has stated that 60 Lakh shares of Artevea Digital Ltd. of value 0.01 Pound each, were allotted to ASC, Singapore without any payment on the instructions of Karti P. Chidambaram. He explained that

when Artevea Digital Ltd., UK was in financial crises in the year 2008, its director Mr. Manoj Mohanka had met Karti P. Chidambaram for help in arranging funds for the company because Manoj Mohanka’s wife, Payal Singh Mohanka, was a contemporary of Karti P. Chidambaram at Cambridge University, UK in 1990s. In response to the request, Karti P. Chidambaram had asked Manoj Mohanka to place him suitably so that he may act on behalf of Artevea, UK for raising capital and requested Manoj to allot the above shares amounting to ₹60 Lakhs approximately (60 Thousand Pounds). In compliance to the request M/s Artevea Digital Ltd. allotted 6 Lakhs shares without any payment and Karti P. Chidambaram failed to raise funds for Artevea but he did not return these 60 Lakhs shares or compensate any money for them.

(l)The recovery of paintings purchased by ASCPL from the premises of Karti P. Chidambaram during searches conducted on 13.01.2018, the statements of Shri S. Bhaskararaman recorded under Section 50 of PMLA, the extracts of books of accounts of ASCPL as recovered from the hard disks of Shri S. Bhaskararaman seized from the premises of Shri Karti P. Chidambaram on 1.12.2015, banks statements of ASCPL, statements of people dealing with ASCPL recorded under section 50 of PMLA, emails of Shri Karti P. Chidambaram, Shri S. Bhaskararaman etc. recovered from the aforesaid hard disks seized on 1.12.2015 all show that every aspect of the business affairs of ASCPL was controlled by Karti P. Chidamabram, every expense incurred by ASCPL no matter how small was approved by Karti P. Chidambaram, expenses of Karti P. Chidambaram were paid by ASCPL and the people making payments to

ASCPL said that the payments were made to Karti P. Chidambaram. This shows that the ASCPL was beneficially owned by Karti P. Chidambaram.

14. The investigation conducted reveals that ASCPL and other concerns are not conducting any genuine and bona fide business activities. The two Debit Notes raised by CBN Placement and Management Center dated 01.10.2007, 17.11.2007 and Debit Note dated 01.04.2008 of Kriya FMCG were prepared by Bhaskararaman, who had brought those Debit Notes for his signatures. He signed those Debit Notes and he had no idea about the parties mentioned in the Debit Notes. The money which was received from Span Fibre was utilised by him for purchase of shares in his name in ASCPL, Chennai and various other expenses and investments made in ASCPL on the instructions of Karti P. Chidambaram. Mohanan Rajesh has stated that Debit Notes raised by Kriya FMCG on Span Fibers, dated 1.10.2007 and 17.11.2007 bear the signatures of Mr. S. Sundar, who resigned in January, 2008.

15. The third Debit Note dated 1.4.2008 bears the signatures of Sh. C.B.N. Reddy, Director. The parties mentioned in the Debit Notes are not known to him. It is only now that he had come to know about the existence of these debit notes. Mr. S. Bhaskararaman, CA, had told him that Polyester Fibre was sold for M/s. Span Fibre for the reason that commission income was generated. He stated that the illegal gratification in the form of commission received from M/s SPAN Fibre India Pvt. Ltd. was split among M/s. ASCPL, M/s. Kriya FMCG and CBN Placement and Management Centre as Sh. CBN Reddy was the common link among the three entities, he was the director and major shareholder in M/s. ASCPL, M/s. Kriya FMCG and proprietor of CBN Placement and Management Centre. The decision to split the said commission was collectively taken by Karti P. Chidambaram, Sh. CBN Reddy and Mr. Bhaskararaman himself. He further stated that the proportion of commission between ASCPL, CBN Placement and Kriya FMCG was also decided by Karti P. Chidambaram.

16. As per Bhaskararaman, CBN Reddy was the link between the 3 entities. Sh. CBN Reddy, however, has stated that this money belonged to Karti P. Chidambaram and that he has no knowledge of the work done. Thus, he admits that money is related to Shri Karti P. Chidambaram and that money was received by three entities acting together i.e. CBN Placement and Management Centre, Kriya FMCG and ASCPL. He also stated that no separate work was done by CBN Placement and Management Centre and M/s. Kriya FMCG. The Debit Notes were raised through CBN Placement and Management Centre. These Debit Notes bear the signature of Sh. CBN Reddy.

17. The investigation conducted further revealed that no brokerage services were actually rendered by ASCPL or associate entities (CBN Placement and Management Centre and Kriya FMCG). The investigation conducted with the buyers of PSF shows that they had never interacted with ASCPL or associate entities. This fact was also admitted by the directors of ASCPL, including Sh. CBN Reddy who is also the proprietor of CBN Placement and Management Centre and the director and shareholder of Kriya FMCG. Sh. Bhaskararaman, the main person behind the laundering of these funds also stated that these debit notes were raised on the directions of Sh. Karti P. Chidambaram to show some transaction which in-fact did not occur. It is further revealed that fake invoices were raised to the companies by ASCPL and other concerns in order to show and legitimize the payments received from those companies which were in fact the bribe money for the favours shown by the petitioner. It is also established that the money was collected by Karti P. Chidambaram through these concerns on behalf of the petitioner for the favours shown by the petitioner to the companies who had transferred money into the account of ASCPL and other concerns. The illegal gratification collected was thereafter invested in other companies /entities. The money received by ASCPL from M/s Span Fibre India Pvt. Ltd. was nothing but illegal gratification received for the approval given by the Finance Minister for FDI in INX Media Ltd. The Bank statement of ASCPL for A/c No. 0602100003711 maintained with DCB Bank shows that ASCPL received money from M/s Span Fibre India Pvt. Ltd. in 2007-08, as follows :-

Sl. No. Date Amount in ₹
1 10.11.2007 34,36,031
2 21.01.2008 30,70,531
3 21.02.2008 23,20,836
4 29.05.2008 22,82,066
Total 1,11,09,464

18. The bank statement of ASCPL shows that initially this amount was invested by ASCPL in fixed deposits. Thereafter the money was invested in shares of Vasan Health Care Ltd. Although the shares were acquired by Smt. Meera Arun for ₹3 Crores, she gifted the shares to her father and he immediately sold the same to ASCPL for ₹1.5 Crores at a price lower than the price at which they themselves bought the shares at a loss of ₹1.5 Crores. Even though the sale was at a price of ₹1.5 Crores, at the time of the sale, ASCPL paid Dwarkanathan (father of Smt. Meera Arun) a sum of ₹50 Lakhs and that too after one year. The balance sheet of ASCPL for the year 2007-08 and 2008-09 shows that at this time the only source of funds available to ASCPL was the money received from Span Fibre India Pvt. Hence, the share of Vasan Health Care Pvt. Ltd. (Vasan) acquired by ASCPL were generated from proceeds of crime as they had been acquired from the illegal gratification received by ASCPL for the approval granted by Finance Minister, P. Chidambaram to INX Media Ltd. The remaining payment of Rs 1 Crore due for the shares of Vasan Health Care Pvt. Ltd. purchased by ASCPL was made on 29.10.2010, only after these shares were sold by ASCPL to Sequoia Capital India Growth Investment Holding (Sequoia) on 26.10.2010.

19. It was projected by the Investigating Agencies that ASCPL received ₹22,50,00,600/- from Sequoia for sale of Vasan shares and this money is tainted money as it arises out of sale of shares of Vasan Healthcare that are themselves acquired from tainted funds and is property involved in money laundering. It is further projected that the remaining shares of Vasan Health Care held by ASCPL is properly involved in money laundering and thereafter, ASCPL sold further 36245 share of Vasan to Vasan Medical Hall @ ₹5242/- per share at a total value of ₹19 Crores. Therefore, it is projected that the amount of ₹19 Crores is also property involved in money laundering as it is arising from sale of shares of Vasan i.e. property involved in money laundering.

20. The investigation conducted further reveals as follows:-

Out of the above property involved in money laundering i.e. amount received by ASCPL from sale of shares of Vasan Healthcare, further property was purchased including that of AGS Healthcare acquired for ₹11 Crores. These shares are also property involved in money laundering as they were bought from tainted money. They were further sold by ASCPL for a sum of ₹29,49,25,885/- i.e. at benefit of ₹18.49 Crores approx. This money is again tainted money as it arises out of sale of property involved in money laundering. The funds of ₹22.5 Crores derived by ASCPL from the sale of shares of Vasan Health Care to Sequoia, funds of ₹19 Crores derived from the sale of shares of Vasan to Vasan Medical Hall and the profit of ₹18.49 Crores approx. on the sale of shares of AGS Health Care was arising out of sale of property involved in money laundering. So, the funds of ₹59.99 Crores are property involved in money laundering. In addition, Span Fibre (India) Pvt. Ltd. and Satyam Fibres (India) Pvt. Ltd paid an amount of ₹3 Crores to ASCPL and associate companies, out of which only ₹50 Lakhs was used and the remaining ₹2.5 Crores were Proceeds of Crime in the hands of ASCPL as both Kriya FMCG and CBN Placement and Management Centre channelled the money back to ASCPL. The remaining shares of Vasan held by ASCPL are also proceeds of crime. In addition ₹10 Lakhs were received by ASCPL from INX Media on 22.07.2008. ₹62.68 Crores

approximately worth properties are involved in money laundering by ASCPL as a result of criminal activity relating to a Schedule Offence.

The remaining shares (83,755) of Vasan Health Care (1,50,000 less 30,000 less 36,245 = 83,755) held by ASCPL are also proceeds of crime as they are derived from criminal activity relating to a Scheduled Offence.

21. This Court is conscious of the fact that personal liberty of a citizen is sacrosanct, but no one is above the law. Law makers cannot be allowed to turn into law breakers with impunity, particularly in cases of this magnitude. What is so far to be seen is the tip of ice berg. Pre-arrest is not meant for high profile economic offenders. Time has come to recommend to the Parliament to suitably amend the Law to restrict the provisions of pre-arrest bail and make it inapplicable to economic offenders of high profile cases like the instant one. It is need of the hour. The law must come down upon economic offenders with a heavy hand. It is often seen that when economic offenders are on pre-arrest bail, then the investigation conducted is at a superficial level, like in the instant case. This not only weakens mega scam cases but it actually stiffs the prosecution. This Court cannot permit the prosecution in this sensitive case to end up in smoke like it has happened in some other high profile cases. Tendering of charge-sheet after obtaining sanction for prosecution of petitioner cannot dilute the gravity of the offence in question. Both the sides have cited legal precedents but the facts of instant case prima facie

reveal that petitioner is the king pin i.e. the key conspirator in this case. Law enforcing agencies cannot be made ineffective by putting legal

obstacles of offences in question being Scheduled or not Scheduled, as

these legal pleas are sub-judice before Supreme Court and cannot

persuade this Court to grant pre-arrest bail, as the gravity of offence

committed by petitioner is quite evident from case diaries etc. produced

by the Investigating Agencies. The gravity of offence committed by

petitioner demands denial of pre-arrest bail to him.

22. Economic offences constitute a class part and need to be visited with a different approach in matters of bail. Taking note of huge magnitude of conspiracy angle qua petitioner, it would be premature to jump to a conclusion that provisions of PMLA would not apply to the instant case, as it cannot be said that the amount involved is below Rs30

Lakhs. Rather, money laundering involved in this INX Media Scam and Aircel Maxis deal scandal is of Rs 3,500 Crores.

23. Supreme Court in Y.S Jagan Mohan Reddy (Supra) while dealing with a money laundering case, has reiterated 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.”

24. The pertinent observations made by Supreme Court in ‘Gautam Kundu Vs. Directorate of Enforcement (Prevention of Money-Laundering Act)’ (2015) 16 SCC 1, which apply to the instant case, are as under:-

“32. We have heard the learned counsel for the parties. At this stage we refrained ourselves from deciding the questions tried to be raised at this stage since it is nothing but a bail application. We cannot forget that this case is relating to “money-laundering” which we feel is a serious threat to the national economy and national interest. We cannot brush aside the fact that the schemes have been prepared in a calculative manner with a deliberative design and motive of personal gain, regardless of the consequence to the members of the society.”

25. Applying the afore-noted dictum to the instant case, this Court finds that not naming of petitioner in FIR, is inconsequential, as petitioner has been projected to be the main accused on whose dictates the offence of this magnitude could be committed. Petitioner cannot claim parity with co-accused who are on bail. It cannot be forgotten that petitioner was the Finance Minister at the relevant time and he had given FDI clearances to INX Media Group for receiving overseas funds to the tune of ₹305

Crores. The alleged irregularities committed by petitioner makes out a

case for refusing pre-arrest bail to petitioner. Simply because petitioner is

a sitting member of Parliament, would not justify grant of pre-arrest bail

to petitioner in this sensitive case. Offenders must be exposed, no matter

what their status is. Petitioner is member of legal fraternity too. But this

by itself does not and cannot justify concession of pre-arrest bail to him.

Discretion to grant or deny pre-arrest bail cannot be exercised de hors the

gravity of offence. It would be preposterous to say that prosecution of

petitioner is baseless, politically motivated and act of vendetta as on the

basis of material collected so far, it can be safely said that prima facie

case is made out against petitioner, thereby, justifying denial of pre-arrest

bail to him. The magnitude of this case dissuades this Court to grant pre-arrest bail to petitioner.

26. The pertinent observations of Supreme Court in CBI Vs. Anil Sharma (Supra) which aptly apply to the instant case, are as follows:-

“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.”

27. Supreme Court in Y.S.Jagan Mohan Reddy (Supra), while dealing with multiple investigations involving multiple conspirators has reiterated that the approach to be followed while dealing with bail plea in cases involving criminal conspiracy to commit economic offences of huge magnitude relating to public money ought to be strict as fraudulent transactions affect the economic system to the detriment of the country. It was pertinently observed that economic crimes of such mammoth scale

are craftily planned and executed. Thus, grant of bail in cases like instant one will send a wrong message to the society.

28. In the instant case, in view of the enormous material placed on record in respect of distinguished entities, various transactions etc, this Court unhesitatingly opines that bail plea of petitioner is not acceptable. Recently, Supreme Court in Rohit Tandon Vs. Directorate of Enforcement (2018) 11 SCC 46 while dealing with the bail plea in a money laundering case, has again reiterated that white collar crimes/ economic offenders have deep rooted conspiracies involving huge amount of public funds and this should be viewed seriously and such offences ought to be considered as grave offences. Pertinently, the bail plea in the case of Rohit Tandon (Supra) was repelled by the Supreme Court while observing that duty of the Court at the bail stage is not to weigh the evidence meticulously but to arrive at a finding on the broad probabilities of the case.

29. This is a classic case of money laundering. The twin factors which have weighed to deny pre-arrest bail to petitioner are: (i) Gravity of offence and (ii) evasive replies given by petitioner to the questions put to him while he was under protective cover extended to him by this Court. The parameters governing pre-arrest bail and regular bail are altogether different. I have pondered over this matter for long and after weighing the pros and cons, I am of the considered view that the gravity of the offence committed in the instant case amply justifies denial of pre-arrest bail to petitioner. Grant of pre-arrest bail in a serious matter like instant

one to an accused simply on the ground that investigation is complete and

charge sheet has been filed, would defeat the ends of justice. In bail matters, gravity of the offence is of utmost consideration which weighs with the Court in granting or refusing pre-arrest bail or regular bail. The facts of this case persuades me to decline pre-arrest bail to petitioner while refraining to comment on the merits of the case.

30. Upon considering the case set up against petitioner in its entirety, this Court is of prima facie opinion that it is not a fit case for grant of pre-arrest bail to petitioner. Consequentially, both these applications are accordingly disposed of, while observing that anything stated herein shall not be taken as an expression on merits at trial.

Dasti.

(SUNIL GAUR)
JUDGE

AUGUST 20, 2019

Bail Appl. 1316/2018 & 1713/2018

Md. Sarfaraz @ Bonu & Anr. Vs- The Union of India- 09/08/2019[CHC]

Affidavit of a witness with regard to the facts in issue cannot be treated as a statement of the deponent before the Court. Hence, such affidavit cannot be treated as ‘evidence’ under section 3 of the Evidence Act unless the law otherwise permits it.

Act: 20(b)(ii)(c) read with section 29 of the NDPS Act

IN THE HIGH COURT AT CALCUTTA

CRIMINAL APPELLATE JURISDICTION

Present:

The Hon’ble Justice Joymalya Bagchi

And

The Hon’ble Justice Manojit Mandal

C.R.A. 667 of 2017

Md. Sarfaraz @ Bonu & Anr. …..Appellants
-Vs-
The Union of India ….Respondent

With

C.R.A. 384 of 2017

Amirul Rahaman …..Appellants
-Vs-
The Union of India ….Respondent

For the Appellant : Mr. Sandip Chakraborty, Adv.
[in C.R.A. 667 of 2017] Mr. Diptendu Banerjee, Adv.
Ms. Sinthia Bala, Adv.
Amicus Curiae : Ms. Meenal Sinha, Adv.
[in C.R.A. 384 of 2017]
For the State : Mr. Sanjoy Bardhan, Adv.
Ms. Trina Mitra, Adv.
For the Union of India : Ms. Hasi Saha, Adv.
Mr. Amajit De, Adv.
For the DRI : Mr. Kaushik Dey, Adv.

Heard on : 26.02.2019, 06.03.2019, 26.03.2019, 03.04.2019,17.04.2019, 08.07.2019, 11.07.2019, 15.07.2019,29.07.2019

Judgment on : 09.08.2019

Joymalya Bagchi, J. :-

Appeals are directed against the judgment and order dated 30.03.2017 and 01.04.2017 passed by the learned Judge, Special Court, NDPS Act, Siliguri in C.R. (NDPS) Case No. 2 of 2012 convicting the appellants for commission of offence punishable under Sections 20(b)(ii)(c) read with section 29 of the NDPS Act and sentencing them to suffer rigorous imprisonment for 10 years and to pay fine of Rs.1,00,000/- in default, to suffer further rigorous imprisonment for six months each.

The prosecution case as alleged against the appellants is as follows:-Pursuant to secret information received by DRI, Deputy Director DRI, Siliguri Regional Unit, that five persons will be carrying narcotic drug (Hashish) coach no. S-7, berth no. 23, 31 and 39 of Kanchankanya Express officers of DRI of Siliguri Regional Unit went to New Jalpaiguri Railway Station on 28.01.2012 around 08:00 p.m. to work out the said information. Kanchankanya Express which was scheduled to arrive at NJP station at 20:15 hours was late by half an hour on that day. At 20:50 hours the train arrived at platform no. 3 of the said railway station. Thereupon, DRI officers boarded sleeper coach no. S-7. One Md. Islam was found occupying berth no. 23 while berth no. 31 was occupied by Nasim Akhter and Amirul Rahaman and berth no. 39 was occupied by Kamaluddin and Md. Sarfaraz. They stated that they were travelling together and had boarded the train to proceed to Kolkata. They produced their e-ticket bearing PNR No. 6106317529 of 13150 Kanchankanya Express. Out of the five names printed on the ticket four names tallied with the aforesaid persons whereas the name mentioned in serial no.4 of the ticket was Md. Nadim but actually Kamaluddin was found to be travelling in the said seat. On query the aforesaid persons clarified that the said name had been mistakenly given at the time of booking and Kamaluddin was travelling in the name of Md. Nadim. The said persons were directed to produce their luggage. Upon noticing suspicious circumstances and on preliminary checking of the luggage, the said appellants were directed to accompany the officers to the DRI office at Pradhan Nagar along with their luggage. The officers checked the luggage at the DRI office in presence of independent witnesses. From a trolly luggage bag marked ‘Corallite’, 24 packets wrapped in plastic tapes was recovered. From another luggage bag marked ‘Cloudragon’, 8 identical packets and 2 packets of cylindrical shape wrapped with adhesive tapes were recovered. On unwrapping the packets, 48 cakes of blackish material suspected to be Hashish were recovered from the trolly bag while 12 cakes of similar material suspected to be Hashish were recovered from the eight packets in other bags. 60 and 59 capsules respectively containing contraband suspected to be Hashish were recovered from the two cylindrical packets. Upon weightment, 60 cakes of black sticky material suspected to be Hashish were found to be 30.440 kgs. Weights of 60 and 59 pieces of capsules were noted as 580 gms. and 590 gms. Respectively. Contraband suspected to be Hashish was found from the 119 capsules as per the accused persons. The contraband articles were seized under a seizure list. In total 100 grams of representatives samples were drawn from the seized contrabands and sent for chemical examination. The remaining seized material were kept in an envelope in the godown of the Siliguri Customs and was subsequently disposed of under the supervision of the Magistrate under section 52A Cr.P.C. Statements of the appellants were recorded under section 67 of the NDPS Act where they admitted their guilt and claimed that they had received Hashish from Kathmandu and were taking it to Kolkata. Upon receiving of chemical examiner’s report disclosing that the contraband contained Hashish, complaint was filed against the appellants.

In conclusion of investigation, charges were framed against the appellants under Section 20 (b)(ii)(c) read with Section 29 of the NDPS Act.

In the course of trial prosecution examined 12 witnesses and exhibited a number of documents.

Defence of the appellants was one of innocence and false implication in the instant case.

In conclusion of trial, the trial Judge by the impugned judgment and order dated 30.03.2017 and 01.04.2017 convicted and sentenced the appellant, as aforesaid.

Mr. Sandip Chakraborty, learned Counsel appearing for the appellants in CRA No. 667 of 2017 argued that the prosecution case has not been proved beyond doubt. Evidence of the officers of DRI have not been corroborated by contemporaneous documentary evidence like platform ticket, etc. to show that they had gone to the railway platform and the appellants boarded with their luggage at coach no.7 of Kanchankanya Express. The e-ticket has not been exhibited in the instant case. Name of Kalamuddin does not appear in the e-ticket which was produced in Court. Fokra Alam, official e-ticket seller, who sold the e-ticket has not been examined. Rough seizure list has not been exhibited and P.W. 2 admitted that Ext. 24 cannot be treated as a seizure list with regard to seizure of contraband. Appellants were in the custody of DRI officers at the time when they made statements under section 67 NDPS Act. Such statements are involuntary and inadmissible in law. Independent witnesses (P.W.s 9 and 10) did not support the prosecution case that they were present along with the DRI officials at the railway station. They also admitted that they had been witness in earlier cases. No permission was taken from the Court to send seized materials for FSL examination and there is variation in the weight of the materials sent and the articles which were examined in the instant case. Original contraband was not produced in Court. Finally, it was argued that the examination-in-chief of P.W.s 3 to 8, 11 and 12 – DRI officers and their associates were adduced by filing affidavits and were inadmissible in law as their evidence did not fall within the ambit of section 295/296 Cr.P.C. and therefore could not have been adduced by filing affidavits.

Nobody appeared for appellant in CRA No. 384 of 2017. Ms. Meenal, learned Advocate, was requested to assist the Court as amicus curiae. She made elaborate arguments supporting the submission of Mr. Chakraborty. They submitted written submission in support of their oral arguments.

On the other hand, Mr. Dey, learned Counsel appearing for the DRI submitted that the affidavit evidence of the prosecution witnesses were initiated in terms of the directions of the Apex Court in Thana Singh Vs. Central Bureau of Narcotics, (2013) 2 SCC 590. No objection was raised on behalf of the defence in the course of trial. Hence, the appellants cannot raise objection at the appellate stage in that regard. Evidence of the official witnesses have established the prosecution case beyond reasonable doubt. Independent witnesses have also proved their signature on the seizure list and other documents and were present at the time of recovery of the articles from the luggage belonging to the appellants at DRI office. E-ticket handed over to P.W. 1 was produced in Court. Non-examination of railway officials or local passengers do not affect the unfolding of the prosecution case and the said case cannot be disbelieved on such score. They submitted written arguments to bolster their written submission. Mr. Bardhan for the State supported the submissions of Union of India.

An interesting issue has cropped up in the course of hearing of these appellants. During trial, examination-in-chief of P.W.s 3 to 8, 11 and 12 were adduced by way of affidavit statutory evidence. Learned Counsel for the appellants as well as amicus curiae strongly contended that examination-in-chief of prosecution witnesses cannot be adduced by submitting affidavit evidence. Such procedure is not envisaged in Code and the directions in Thana Singh (supra) cannot be interpreted to permit such a course of action. On the contrary, learned Counsel for the Union of India submitted that the evidence of P.W.s 3 to 8, 11 and 12 fall within the species of ‘official evidence’ referred to in paragraph 12 of the report and since no objection had been taken during trial, the appellants cannot be permitted to raise objection in this regard at the appellate stage.

In a criminal trial, fact must be proved in accordance with procedure established by law.

The Evidence Act and the Code of Criminal Procedure lay down the procedure in which evidence is to be led in a criminal trial, subject, however, to any provision to the contrary in the special law e.g. NDPS Act applicable which is in the present case.

Section 3 of the Evidence Act defines evidence as follows:-

“Evidence”. – “Evidence” means and includes –

(1) all statements which the Court permits or requires to be made before it by such statements are called oral evidence;

(2) all documents [including electronic records] produced for the inspection of the court;
such documents are called documentary evidence.

The aforesaid provision creates two categories of evidence, that is, (i) oral evidence – statement of witnesses made before the Court; and (ii) documentary evidence including electronic records produced before the Court for its inspection. Affidavit of a witness with regard to the facts in issue cannot be treated as a statement of the deponent before the Court. Hence, such affidavit cannot be treated as ‘evidence’ under section 3 of the Evidence Act unless the law otherwise permits it. In criminal trials affidavit evidence may be given in terms of section 295 and 296 thereof which read as follows:-

“295. Affidavit in proof of conduct of public servants. – When any application is made to any Court in the course of any inquiry, trial or other proceeding under this Code, and allegations are made therein respecting any public servants, the applicant may give evidence of the facts alleged in the application by affidavit, and the Court mnay, if it thinks fit, order that evidence relating to such facts be s given.

296. Evidence of formal character on affidavit. – (1) The evidence of any person whose evidence is of a formal character may be given by affidavit and may, subject to all just exceptions, be read in evidence in any inquiry, trial or other proceeding under this Code.

(2) The Court may, if it thinks fit, and shall, on the applications of the prosecution or the accused, summon and examine any such person as to the facts contained in his affidavit.”

Analysis of the aforesaid sections would show that they operate in completely different fact situation than the present one. P.W.s 3 to 8, 11 and 12 are officers of DRI who were members of the raiding party and had deposed by filing affidavit evidence with regard to the facts they saw and did in the course of the raid. Such evidence is neither in response to any application containing allegations against a public servant nor is it of a formal character, e.g. witness producing official records. There is no provision in the NDPS Act also permitting recording of evidence of members of the raiding party by way of affidavit evidence unlike section 145 of the Negotiable Instrument Act wherein a complainant may adduce evidence on behalf of himself and his witnesses by filing affidavits. Directions in Thana Singh (supra) is to be read in the backdrop of the aforesaid statutory scheme skill relating to criminal trials. In order to ensure enforcement of fundamental rights particularly the cluster of rights incorporated in Article 21 which stood frequently violated due to delay and laches in conducting trials under NDPS Act, the Apex Court in the said report issued various directions and guidelines under Article 141 read with Article 32 of the Constitution of India. With regard to examination of witnesses in trials in NDPS case, the Apex Court directed as follows:-

“11. It would be prudent to return to the erstwhile method of holding “sessions trials” i.e. conducting examination and cross-examination of a witness on consecutive days over a block period of three to four days. This permits a witness to take the stand after making one-time arrangements for travel and accommodation, after which, he is liberated from his civil duties qua a particular case. Therefore, this Court directs the courts concerned to adopt the method of “sessions trials” and assign block dates for examination of witnesses.”

In view of the difficulty faced by various agencies in procuring attendance of officers who have been transferred from their parent organizations to different places, the Apex Court further directed as follows:-

“12. The Narcotics Control Board also pointed out that since operations for prevention of crimes related to narcotic drugs and substances demands coordination of several different agencies viz. Central Bureau of Narcotics (CBN), Narcotics Control Bureau (NCB), Department of Revenue Intelligence (DRI), Department of Customs and Central Excise, Stat Law Enforcement Agency, State Excise Agency to name a few, procuring attendance of different officers of these agencies becomes difficult. On the completion of investigation for instance, investigating officers return to their parent organizations and are thus, often unavailable as prosecution witnesses. In the light of the recording of such official evidence, we direct the courts concernd to make most of section 293 of the Code of Criminal Procedure, 1973 and save time by taking evidence from official witnesses in the form of affidavits.”

It has been argued in terms of the aforesaid direction evidence of official witnesses were recorded in the form of affidavits. On the other hand, it is argued that the expressions “official evidence” and “official witnesses” in the aforesaid direction must be restricted to government scientific expert under section 293 Cr.P.C. It is settled law that direction of the Apex Court under Article 141 of the Constitution is in the nature of an imprimatur and is binding on all courts of the country. Whether such declaration of law was made without considering statutory provisions, e.g. section 295/296 Cr.P.C. or not as argued on behalf of the appellants cannot be a matter of adjudication before this Court. It is settled law that a decision of the Supreme Court cannot be assailed on the ground that certain aspects were not considered or the relevant provisions were not brought to the notice of the Court. (see Director of Settlement, A.P. Vs. M.R. Apparao, (2002) 4 SCC 638.)

In Suganthi Suresh Kumar Vs. Jagdeeshan, (2002) 2 SCC 420, the Court held as follows:-

“9. It is impermissible for the High Court to overrule the decision of the Apex Court on the ground that the Supreme Court laid down the legal position without considering any other point. It is not only a matter of discipline for the High Courts in India, it is the mandate of the Constitution as provided in Article 141 that the law declared by the Supreme Court shall be binding on all courts within the territory of India. It was pointed out by this Court in Anil Kumar Neotia v. Union of India that the High Court cannot question the correctness of the decision of the Supreme Court even though the point sought before the High Court was not considered by the Supreme Court.”

Furthermore, in this case the objection with regard to admissibility of affidavit evidence has been raised at the appellate stage and not in the course of trial. As the contents of the affidavits are not inherently inadmissible but their mode and manner of leading evidence is in question, I am of the opinion that the objection thereto must have been raised at the earliest and not at the appellate stage. In this regard, reference may be made to the ratio of the Apex Court relating to objection vis-à-vis proof of electronic evidence sans certification under section 65B of the Evidence Act. The Apex Court in Sonu v. State of Haryana, (2017) 8 SCC 570 held as follows:-

“32. …Admissibility of a document which is inherently inadmissible is an issue which can be taken up at the appellate stage because it is a fundamental issue. The mode or method of proof is procedural and objections, if not taken at the trial, cannot be permitted at the appellate stage. If the objections to the mode of proof are permitted to be taken at the appellate stage by a party, the other side does not have an opportunity of rectifying the deficiencies.”

Hence, I am of the opinion that the objection raised with regard to the examination-in-chief of P.W.s 3 to 8, 11 and 12 recorded by way of affidavit cannot be permitted to be raised at the appellate stage. However, in future cases the aforesaid direction given by the Apex Court in Thana Singh (supra) may be considered in the light of advancement in technology particularly availability of video conferencing facilities for recording evidence in criminal cases. Concern expressed in Thana Singh (supra) with regard to delay in examination of official witnesses, due to transfer from parent organization to different places may be effectively addressed if the said witnesses are permitted to record their evidence via electronic/video linkage available in the district court complex nearest to his present place of posting. In State of Maharashtra Vs. Dr Praful B. Desai, (2003) 4 SCC 601 and Sujoy Mitra Vs. State of W.B., (2015) 16 SCC 615, the Apex Court held that examination of a witness via video conference is permissible in law. In Sujoy Mitra (supra), the Apex Court permitted examination of a foreign national via video conference by adopting the following procedure:-

“3.1. The State of West Bengal shall make provision for recording the testimony of PW 5 in the trial court by seeking the services of the National Informatics Centre (NIC) for installing the appropriate equipment for video conferencing, by using “VC Solution” software, to facilitate video conferencing in the case. This provision shall be made by the State of West Bengal in a room to be identified by the Sessions Judge concerned, within four weeks from today. The NIC will ensure, that the equipment installed in the premises of the trial court, is compatible with the video conferencing facilities at the Indian Embassy in Ireland at Dublin.

3.2. Before recording the statement of the prosecutrix, PW 5, the Embassy shall nominate a responsible officer, in whose presence the statement is to be recorded. The said officer shall remain present at all times from the beginning to the end of each session, of the recording of the said testimony.

3.3. The officer deputed to have the statement recorded shall also ensure that there is no other person besides the witness concerned, in the room, in which the testimony of PW 5 is to be recorded. In case, the witness is in possession of any material or documents, the same shall be taken over by the officer concerned in his personal custody.

3.4. The statement of witness will then be recorded. The witness shall be permitted to rely upon the material and documents in the custody of the officer concerned, or to tender the same in evidence, only with the express permission of the trial court.

3.5. The officer concerned will affirm to the trial court, before the commencement of the recording of the statement, the fact, that no other person is present in the room where evidence is recorded, and further, that all material and documents in possession of the prosecutrix, PW 5 (if any) were taken by him in his custody before the statement was recorded. He shall further affirm to the trial court, at the culmination of the testimony, that no other person had entered the room, during the course of recording of the statement of the witness, till the conclusion thereof. The learned counsel for the accused shall assist the trial court, to ensure, that the above procedure is adopted, by placing reliance on the instant order.

3.6. The statement of the witness shall be recorded by the trial court, in consonance with the provisions of Section 278 of the Code of Criminal Procedure. At the culmination of the recording of the statement, the same shall be read out to the witness in the presence of the accused (if in attendance, or to his pleader). If the witness denies the correctness of any part of the evidence, when the same is read over to her, the trial court may make the necessary correction, or alternatively, may record a memorandum thereon, to the objection made to the recorded statement by the witness, and in addition thereto, record his own remarks, if necessary.

3.7. The transcript of the statement of the witness recorded through video conferencing (as corrected, if necessary), in consonance with the provisions of Section 278 of the Code of Criminal Procedure, shall be scanned and dispatched through email to the embassy. At the embassy, the witness will authenticate the same in consonance with law. The aforesaid authenticated statement shall be endorsed by the officer deputed by the embassy. It shall be scanned and returned to the trial court through email. The statement signed by the witness at the embassy, shall be retained in its custody in a sealed cover.

3.8. The statement received by the trial court through email shall be re-endorsed by the trial Judge. The instant statement endorsed by the trial Judge, shall constitute the testimony of the prosecutrix, PW 5, for all intents and purposes.”

Although the aforesaid case related to a witness in a foreign country, the procedure laid down in the aforesaid decision may be utilized while examining official witnesses in narcotic cases subject to the modification that the official witness may depose via video conferencing facility from the district court complex nearest to his place of posting under the supervision of a responsible officer (e.g. Registrar of the said court) so authorized in that regard by the concerned District Judge. Procedure of recording evidence of witness in far off places via video conference in Sujoy Mitra (supra) were laid down by the Apex Court subsequent to Thana Singh (supra) and the ratio contained therein may be gainfully utilized for recording evidence of official witnesses who have been transferred to a distant place and their physical attendance in court cannot be promptly procured. In fact, examination of official witnesses via video conference has two-fold advantages over affidavit evidence. Firstly, when examination-in-chief of a witness is recorded by filing affidavit evidence the witness is not absolved from being physically present in Court as he has to prove the affidavit and offer himself for cross-examination and the wholesome object of saving time by avoiding travel of official witnesses from their place of posting to the trial Court is defeated. On the other hand, if evidence of the said witness is recorded via electronic/video linkage, he need not be physically present in the court premises and thereby the purpose of quick trial would be better served. Secondly, recording of evidence of witnesses via video linkage is better suited to the concept of fair trial than affidavit evidence. If a witness is examined via electronic/video linkage, his demeanour may be watched by the Court enabling it to form an opinion with regard to his creditworthiness. Similarly, it helps the accused to formulate his defence and pose appropriate questions in cross to test the veracity of his deposition. Demeanour of a witness cannot be assessed if his chief is recorded through affidavit evidence. One cannot lose sight of the fact that criminal cases, unlike civil cases, are primarily based on oral evidence of witnesses of fact where demeanour and conduct of the witness during his examination-in-chief play a very vital role in assessing his truthfulness.

Technological progress in recording evidence via electronic/video linkage is a boon and ought to effectively utilized to improve the quality of dispensation of justice by reducing the time taken for conducting trials in narcotic cases involving official witnesses who are posted at far off places and whose attendance in Court cannot be promptly ensured. Special courts conducting such trial (particularly where under trials are in jail) are directed to avail of electronic/video linkage facilities and examine official witnesses whose attendance cannot be procured without delay, undue expenses and/or other inconveniences so that the fundamental right of speedy and fair trial is effectively enforced and does not become a dead letter of law.

Coming to the evidence on record, I note P.W.s 1, 2, 5, 11 and 12 are members of the raiding party. All of them deposed P.W. 11 had received prior information that five persons would board Kanchankanya Express with Hashish at New Jalpaiguri Railway Station on 28.01.2012. Pursuant to such intelligence, under the leadership of P.W. 11, they went to the railway station. On arrival of the train they boarded coach no. S-7 and identified occupants of berth no. 23, 31 and 39, that is, the appellants herein. The appellants identified their luggage. On preliminary examination of their luggage, it was suspected that they were carrying contraband. The appellants were directed to accompany the members of the raiding party with their luggage to their office. At the office, their bags were opened and contraband articles were recovered. Articles were seized and representatives samples were taken therefrom. Statements of the appellants were recorded under section 67 of the NDPS Act and thereafter they were arrested. Samples were sent for chemical examination and the chemical examiner’s report confirmed that the contraband contained Hashish.

P.W.s 6 and 7 were drivers of the vehicles in which the raiding party went to the railway station.

P.W. 8 was one of an associate of the drivers.

P.W.s 9 and 10 are independent witnesses to seizure of narcotics from the luggage of the appellants at DRI office.

The evidence of the official witnesses have been criticised on the ground that contemporaneous document like platform tickets have not been exhibited. Neither railway official nor any passenger of the said train was examined to support the evidence of the prosecution case. Even P.W. 9 and 10 did not admit their presence at the railway station wherefrom the appellants along with their luggage was brought to DRI office. E-ticket produced by the appellants has also not been proved in accordance with law. Fokra Alam, e-ticket seller has also not been examined.

I have given anxious consideration to the aforesaid submission on behalf of the defence. It is a trite law if official witnesses are clear and convincing, mere lack of corroboration from independent witnesses cannot be a ground to reject their evidence. [Ref. Sumit Tomar Vs. State of Punjab, (2013) 1 SCC 395,

Kulwinder Singh Vs. State of Pubjab, (2015) 6 SCC 674, Baldev Singh Vs. State of Haryana, (2015) 17 SCC 554, Varinder Kumar Vs. State of Himachal Pradesh, 2019 SAR (Criminal) 245]

It is the quality and not quantity of evidence which is relevant to prove a fact. Narration of the incident as coming from the mouths of the members of the raiding party particularly P.W. 1 and 2 establish beyond doubt that the DRI officials on the fateful day went to the railway station and upon boarding the train had identified the appellants with their luggage. Upon preliminary examination it appeared the appellants were carrying contraband. Thereupon they were asked to accompany the officials to their office. Evidence has also come record that the appellants handed over an e-ticket, on which name of Kamaluddin was incorrectly stated as Md. Nadim, which was subsequently seized. These facts have remained unshaken in cross-examination and the fact that the appellants upon being confronted by the DRI officials in their version had accompanied them with the luggage to their office is established beyond doubt. When the evidence of the official witnesses appear to be clear and convincing, non-production of the platform ticket or non-examination of RPF officials including the ticket seller, in my considered opinion, does not render the prosecution case improbable.

It has also been argued that the independent witnesses P.W. 9 and 10 have not supported the prosecution case. In this regard reliance has been placed on Naresh Kumar Vs. State of H.P., (2017) 15 SCC 684 and Gorakh Nath Prasad Vs. State of Bihar, (2018) 2 SCC 305. It has also been submitted that P.W. 9 had deposed earlier in DRI cases. I have examined the evidence of P.W. 9 and 10 from that perspective. Although P.W. 1 and 2 deposed the said witnesses had accompanied them to the platform where the appellants were identified with their luggage and requested to accompany the DRI officials to their office. P.W. 9 and 10 claimed that they came to the DRI office and found appellants present there along with their luggage. P.W. 9 stated DRI officials had told him that there were capsules in the luggage belonging to the appellants. He, thereafter, signed on inventory-cum-seizure list (Ext. 24) and Panchnama (Ext. 25). He also recorded the statements of appellant Nasim Akhtar and Kamaluddin marked as exhibit 5 and 9 respectively. Similarly, P.W. 10 came to the DRI office and found that there were packets on the table which he heard were Hashish. Although he could not identify the accused persons by face, he stated five persons were arrested and admitted his signature on the inventory-cum-seizure list, Panchnama and other documents.

From the evidence of the aforesaid witnesses it appears that they have not wholly disowned the prosecution case. Although they did not support the evidence of official statement with regard to their presence at the platform but one of them, that is, P.W. 9 claimed that the appellants were present along with their luggage when he arrived at the DRI office and the officials informed him that there was Hashish in their luggage. Accordingly, he put his signature on the inventory-cum-seizure list and Panchnama. He also recorded the statements of two of the appellants in Hindi. P.W. 10 claimed when he arrived at the DRI office there were packets on the table and the officials said they contained Hashish. Four persons were arrested and he admitted his signature on the seizure list. The evidence of the aforesaid witnesses taken as a whole do not render the prosecution case improbable. On the other hand, evidence of P.W.9, independent witness lends credence to the presence of the appellants along with their luggage at the DRI office and recovery of articles which was said to be Hashish. Soon thereafter, voluntary statements of Kalamuddin were recorded by the said witness strongly probabilising his presence at the DRI office at the time of recovery. In these circumstances, I am of the opinion the prosecution case is corroborated with regard to the recovery of narcotic substance from the luggage of the appellants in their presence at the DRI office by the independent witnesses particularly P.W.9. In this factual backdrop the authorities relied on by the defence are clearly distinguishable. In Naresh Kumar @ Nitu Vs. State of Nana Keshav Lagad Vs. Himachal Pradesh, (2017) 15 SCC 684, the independent witness P.W. 2 wholly denied the presence of the appellant at the place of occurrence and the circumstances of the case showed that presence of appellant at the spot was an impossibility. In Gorakh Nath Prasad Vs. State of Bihar, (2018) 2 SCC 305, P.W. 2 and 3 denied recovery and claimed their signatures were obtained in blank papers.

As discussed above in the present case independent witnesses, particularly P.W. 9 admitted with regard to the presence of the appellants along with their luggage at the DRI office and the officials informed him narcotic substance were recovered from such luggage. Thereupon P.W.9 signed on inventory and seizure memo and other documents. He also recorded voluntary statements of Naskar and Kalamuddin. It has been contended that P.W. 9 was a stock witness as he had deposed in other cases. However, prosecution has not been able to show P.W. 9 had any enmity with the appellants or was under any obligation to the DRI officers to support their case. On the other hand, when his evidence is read as a whole it does not appear that he deposed as per dictates of the DRI officers. Merely because a witness has deposed in other cases on behalf of the police his evidence cannot be rejected on such score alone. [see State of Maharashtra, (2013) 12 SCC 721, Para 26, Mahesh Janardhan Gonnade Vs. State of Maharashtra, 2008 Cri.L.J. 3602, Para 45].

It has been argued that the seizure list has not been exhibited in the instant case. From the evidence on record it appears that the contraband articles were recovered from the luggage of the appellants at the DRI office. At the time seizure list was prepared by P.W.2 (Ext. 24). He also prepared a panchnama (Ext.25). P.W.2 deposed initially he prepared a rough seizure list and thereafter a typed seizure list (Ext. 24) was prepared by him. Ext. 24 bears signatures of the accused persons and public witnesses and appears to have been contemporaneously prepared at the time of seizure. In the backdrop of the aforesaid fact I am of the opinion that Ext. 24, namely, the inventory-cum-seizure list is a contemporaneous record with regard to the recovery of the articles from the luggage of the appellants and the defence cannot cast doubt with regard to its authenticity on the score of non-production of rough notings of P.W.2 which he has described as rough seizure list.

It has also been argued as the appellants were in custody of DRI officials when their statements recorded under section 67 of the NDPS Act, accordingly such statements are involuntary and inadmissible in Court. Reference has been made to Noor Aga Vs. State of Punjab, (2008) 16 SCC 417 and Union of India Vs. Bal Mukund, (2009) 12 SCC 161. It is further argued that in Tofan Singh Vs. State of T.N., (2013) 16 SCC 31, the issue whether statement recorded under section 67 NDPS is substantive evidence and can be the sole basis of conviction has been referred to a larger bench. It appears from the evidence of the official witnesses that the appellants had not been arrested prior to the recording of their statements under section 67 of NDPS. In fact, statements of two of the appellants, namely Naism Akhtar & Kamaluddin were recorded by an independent witness (P.W.9) in Hindi. The appellants have not retracted their statements under section 67 of the NDPS Act at any point of time. Hence, the facts of the instant case are distinguishable from Noor Aga (supra) and Bal where the confessional statements had been retracted.

Furthermore, there is direct evidence with regard to recovery of narcotic substance from the luggage of the appellants. Under such circumstances, the voluntary statements of the appellants recorded under section 67 of NDPS Act can be used as corroborative evidence to bolster the prosecution case. Reference in this regard may be made to Daulat Ram Vs. Crime Branch (Narcotics) Mandsaur, (2011) 15 SCC 176,wherein evidence of official witnesses relating recovery of narcotics corroborated by the statement of accused under section 67 of NDPS was the basis of conviction.

Chain of custody of the seized contraband and the representative samples taken therefrom for chemical examination have been proved. P.W.11 sent the representative samples for chemical examination under cover of letter (Ext. 16/16/1). Chemical examiner’s report showing that the samples contain Charas was exhibited as Ext. 17. Variation in weight of the representative samples in the test report and as noted in panchnama are minor and of little relevance as signatures and seals on the envelopes containing the samples were found intact. Remainder of the contraband was kept in Siliguri Customs Godown and destroyed with permission of the Court in terms of section 52 NDPS Act. Hence, non-production of seized contraband in court cannot be a ground to reject the prosecution case.

Accordingly, I uphold the conviction and sentence recorded against the appellants.

The appeals are, accordingly, dismissed.

The period of detention suffered by appellants during investigation, inquiry or trial shall be set off under Section 428 of the Code of Criminal Procedure.

I record my appreciation for the able assistance rendered to this Court by Ms. Meenal Sinha as amicus curiae for disposing the appeal.

Copy of the judgment along with L.C.R. be sent down to the trial court at once.

Urgent Photostat Certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities.

I agree.

(Joymalya Bagchi, J.)

(Manojit Mandal, J.)

09.08.2019
PA

Prayer for pre-arrest bail was turned down by Apex Court granted by Calcutta High Court -13.08.2019

The accused was not named in the first information report and as co-accused persons are on regular bail/anticipatory bail, we are inclined to grant bail to the petitioner.

CALCUTTA HIGH COURT

163

13.08.2019

rkd Ct. No.28

Allowed

C.R.M. 7297 of 2019

In Re: – An application for bail under Section 439 of the Code of Criminal Procedure filed on 07/08/2019 in connection with Kaliachak P.S. Case No. 505 of 2018 dated 17/07/2018 under Sections 286/120B/304 of the Indian Penal Code and under Sections 3/4/5 of the E.S. Act.

And

In the matter of: Riday @ Hriday Ghosh @ Ridoy

….petitioner.

Mr. A. Karmakar,
Mr. A. K. Bhowmick

                               …for the petitioner.

Mr. N. Ahmed,
Ms. A. Roy
…for the State.

Petitioner is in custody for 30 days and it is submitted that some of

the accused persons are on regular bail/anticipatory bail.

Learned counsel appearing on behalf of the State opposes the prayer for bail and submits that the prayer for pre-arrest bail of the petitioner was turned down by the Apex Court.

Having considered the materials in the case diary and bearing in mind the extent of complicity of the petitioner in the alleged crime and in the light of the aforesaid submission that he was not named in the first information report and as co-accused persons are on regular bail/anticipatory bail, we are inclined to grant bail to the petitioner.

Accordingly, the petitioner is directed to be released on bail upon furnishing a Bond of Rs. 10,000/- with two sureties of like amount each, one of whom must be local, to the satisfaction of the Learned Chief Judicial Magistrate, Malda subject to the condition that during bail he shall appear before the learned trial court regularly till disposal of the trial and he shall not intimidate witnesses or tamper with evidence in any manner whatsoever.

In the event the petitioner fails to comply with the conditions as enshrined hereinbefore, it is open to the trial court to cancel the bail without any further reference to this Court.
The application for bail is, thus, disposed of.

(Manojit Mandal, J.)

(Joymalya Bagchi, J.)

Tarakeswar Rewani vs The UCO Bank & Ors [CHC]-26/07/2019

A casual sweeper/safai karmachari of the Bank on daily wage basis with no formal letter of appointment/engagement was issued in his favour. Payment was made to him against cash vouchers was terminated filed a Writ petition. When the writ petitioner is a workman and the dispute is an industrial dispute the Industrial Court/Tribunal is the proper forum.

Acts: Section 2S of the Industrial Disputes Act, 1947

CALCUTTA HIGH COURT

WP No. 11857 [W] of 2019

Tarakeswar Rewani
-vs-
The UCO Bank & Ors.

For the petitioner : Mr. Malay Dhar, Mr. Biswajit Sarkar.

For the respondents: Mr. Rahul Karmakar, Miss. Priyanka Chetlangia.

The petitioner claims to have been engaged on 14th October, 2001 as a casual sweeper/safai karmachari of the Bank on daily wage basis. No formal letter of appointment/engagement was issued in his favour. Payment was made to him against cash vouchers.

The petitioner alleges that the Bank discontinued his service on and from December, 2014 without any prior intimation. No letter of termination was served upon him. It was on oral instructions that the petitioner was directed not to report to work.
The petitioner contends that the management of the Bank took a policy decision to regularise the service of all contractual sweepers appointed on casual basis and a list was prepared for regularisation of their services. The casual employees who were junior to him and working in the same branch were made permanent whereas his service has been terminated.

An industrial dispute was raised by the trade union of which the petitioner was a member. The Assistant Labour Commissioner (Central) Kolkata recorded the failure of the conciliation proceeding on 4th March, 2019. The union representative was agreeable for Voluntary Arbitration under Section 10A of the Industrial Dispute Act, 1947 while the management representative was not in favour.

The petitioner submits that the action of the respondents is arbitrary, discriminatory and contrary to the provisions of Articles 14 and 16 of the Constitution of India. The petitioner further submits that in the conciliation proceeding the Bank raised the point that there was no employer – employee relationship between the parties and accordingly the ratio of the judgment in the case of the Secretary, State of Karnataka & Ors. vs. Uma Devi & Ors. will not be applicable in his case.
The petitioner has accordingly filed the instant writ petition for redressal of his grievances.

The respondents have raised a preliminary objection with regard to the maintainability of the writ petition before this Court. It has been specifically contended that the petitioner was a ‘workman’ as per Section 2S of the Industrial Disputes Act, 1947 (hereinafter referred to as ‘the Act’). The dispute in question is an ‘industrial dispute’ as per Section 2K of the Act and the issue in question can be decided in accordance with the industrial law.

It has been argued that the Act is a complete code and the petitioner ought to take recourse of the statutory remedy that is available to him. The recording of failure of the conciliation proceeding on 4th March, 2019 is not under challenge. As the petitioner has already availed the remedy under the Act to challenge the action of the respondents accordingly filing a writ petition challenging the self-same action will be hit by the principle of res judicata. A party cannot initiate two separate proceedings before two separate forums on the self-same cause of action. The respondents pray for dismissal of the writ petition.

In response to the preliminary objection raised by the respondent the petitioner submits that the respondents on one hand before the Assistant Labour Commissioner took a specific plea that the employer-employee relationship between the parties do not exist, whereas in the present proceeding the respondents submit that the industrial dispute was maintainable. The respondents cannot approbate and reprobate at the same time.

It has been submitted that the alternative remedy that is available to the petitioner is not an effective and efficacious one. The petitioner was dismissed from service in the year 2014 and the failure of the conciliation proceeding was recorded in the year 2019. The petitioner further submits that his life and livelihood is at stake as he is passing through acute financial crisis. He placed reliance on the judgment delivered by the Hon’ble Supreme Court in the matter of Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai & Ors. reported in (1998)8 SCC 1 wherein the Court held that the alternative remedy would not operate as a bar where the writ petition has been filed for the enforcement of any of the fundamental rights or where there has been violation of the principles of natural justice or where the order or proceeding are wholly without jurisdiction or the vires of an Act is challenged.

On the self-same proposition the petitioner relies upon another decision delivered by this Court in the matter of Agricultural Finance Co. Ltd. vs. Micro Small & Medium Enterprises Facilitation Council reported in (2013)5 CHN (Cal) 375 (para 12).

He further relies upon an unreported order dated 21st January, 2011 passed by a Hon’ble Single Judge of this Court in WP No. 25952 (W) of 2010 on the issue that the writ petition was maintainable as there has been fundamental breach of the procedure, and principles of natural justice have not been complied with.

As a preliminary objection has been raised with regard to the maintainability of the writ petition I intend to deal with the same at the very first instance.

Though the petitioner claims that he was appointed by the respondent on daily wage basis neither any appointment/engagement letter nor any termination letter has been annexed to the writ petition. Certain communications have been annexed with the writ petition which gives a faint indication that the petitioner may have been associated with the Bank in the year 2008, but the same does not give any conclusive proof about the engagement of the petitioner by the Bank on regular basis.

The petitioner alleges that he was terminated from service in the year 2014. No representation and/or objection appear to have been filed/raised by the petitioner at the relevant point of time or soon thereafter. Long thereafter in November, 2017 the union of the Bank employees raised an industrial dispute before the Regional Labour Commissioner. On the basis of the same, an industrial dispute conciliation proceeding was initiated in the year 2017 which ended in failure as recorded in the conciliation failure report issued by the Assistant Labour Commissioner (Central) Kolkata on 4th March, 2019.

The petitioner waited from 2014 to raise the labour dispute in the year 2017. No reason whatsoever has been put forward by the petitioner for sitting tight for three long years to raise the industrial dispute. On the failure of the conciliation proceeding the petitioner immediately rushed to the High Court by filing the instant writ application.

As the petitioner has already availed the statutory remedy that was available to him, accordingly, filing a separate writ petition challenging the said termination will not be maintainable. The appropriate remedy would be to continue with the proceeding in accordance with the industrial law.

Moreover, there are several disputed questions of facts which will not be possible for the writ court to decide. The petitioner does not have any document in support of his engagement in the Bank. Neither is there a letter of termination. A couple of vouchers allegedly showing payment of wages and a few communications of the bank allotting sundry jobs does not prove that the petitioner was engaged by the Bank on regular basis. The petitioner is required to prove the same by leading evidence.

The Hon’ble Supreme Court of India in Scooters India & Ors. –vs- Vijai E.V. Eldred reported in (1998) 6 SCC 549 held that the High Court is not the forum to entertain writ petition directly for adjudication of an industrial dispute relating to termination involving disputed questions of fact for which, remedy under the industrial laws was available to the workman. That apart, the writ petition filed more than six years after the date on which the cause of action is said to have arisen and there being no cogent explanation for the delay, the writ petition should have been dismissed on the ground of latches alone.

In the instant case the petitioner was terminated in 2014. The industrial dispute was raised in 2017. Entertaining the instant writ petition challenging the alleged order of termination in the year 2019 is not justified. Delay and latches looms large in the instant case.

In Webel Video Devices Ltd. vs. Prasanta Kumar Das & Ors. reported in 2007(3) CHN 8 the Hon’ble Division Bench of this Court categorically held that when the writ petitioner is a workman and the dispute is an industrial dispute the Industrial Court/Tribunal is the proper forum. In the said case the Hon’ble Court took into consideration various decisions and arrived at the said conclusion.

Availability of an alternative remedy does not oust the High Court’s jurisdiction to entertain a writ petition is settled law. The jurisdiction exercised by the High Court under Article 226 of the Constitution is plenary. The relief under Article 226 being discretionary, it is for the Court to decide, whether or not to entertain an application, depending upon the facts and circumstances of each case. Upon appreciation of the facts of the instant case I am not inclined to exercise my discretion in favour of the petitioner.

The writ petition fails and is accordingly dismissed.

The dismissal of the writ petition however, will not stand in the way of the petitioner from approaching the appropriate forum for redressal of his grievances in accordance with law, if so advised.

W.P No. 11857 [W] of 2019 is dismissed.

Urgent certified photocopy of this judgment, if applied for, be supplied to the parties on compliance of usual legal formalities.

(Amrita Sinha, J.)

26.07.2019

Dr. Bimal Kumar Raj & Ors. VS The State of West Bengal and Ors.[CHC]-26/07/2019

In a democratic polity the larger interest of the populous has to be given weightage. The minuscule minority has to understand and accept the larger and more laudable need for overall development of the district and the economy of the State. Such larger interest is in the overall Socio-Economic development of the State. Employment generation, revenue income, poverty alleviation in an entire district must be given primacy over the small personal and individual shenanigans.

Act: Section 4 of the Land Acquisition Act, 1894

IN THE HIGH COURT AT CALCUTTA

Constitutional Writ Jurisdiction
APPELLATE SIDE

BEFORE:- THE HON’BLE JUSTICE RAJASEKHAR MANTHA

W.P. No. 743 (W) of 2008

Dr. Bimal Kumar Raj & Ors. VS The State of West Bengal and Ors.

For the Petitioner Nos. 1-4 :

Mr. Asish Sanyal, Ld. Sr. Adv.

Mr. Debasish Das, Adv.
Mrs. Subha Chowdhuri, Adv.

For the Petitioner Nos. 5,6 : Mr. Ashok Nath Ghosh, Adv.

Mr. Kinkar Chandra Basu, Adv.
Mr. Younush Mondal, Adv.

For the State : Lalit Mohan Mahata, Adv.

Mr. Prasanta Behari Mahata, Adv.

Hearing Concluded On : 19.07.2019

Judgment On : 26.07.2019

Rajasekhar Mantha, J.:-

1. The petitioners, six in number, are all registered land owners under Mouza Ruisnda (A), J.L. 211, P. S. – Kharagpur, District – Paschim Medinipur. Their RS & LR plot numbers are 86/332, 135, 137 and 138. They seek quashing of land acquisition proceedings initiated under LAP case No. 14 of 06-07 corresponding to LA case No. 11 of 07-08.

2. The facts of the case are, inter alia, that by a notification published in the official gazette under Section 4 of the Land Acquisition Act, 1894, an area of about 85 acres (3.4250 hectares) was notified for acquisition, by the State, for setting up an industrial estate called ‘Telecon and Allied Industrial Units’ on the said land. The gazette notification dated 27th November, 2006 invited all owners of land to submit their objections if any to such proposed acquisition. The acquisition of the land was done on a proposal of the West Bengal Industrial Development Corporation Limited (WBIDC) a body wholly owned and controlled by the State of West Bengal which was the requiring body. The WBIDC put in Rs.50 Crores of funds to facilitate the acquisition.

3. Pursuant thereto the petitioners, inter alia, by a representation dated 23rd December, 2006 objected to the acquisition, inter alia, contending that the land was densely populated by cultivators and was primarily agricultural in nature. The petitioner No. 1 who is a medical practitioner intended to set up a Super Speciality Hospital thereat.

4. The petitioners also filed supplementary objections on 15th January, 2007 contending that (a) the land was being acquired for a private company and hence no public interest would be served. (b) There are other approach roads to the main land. (c) The petitioners’ plots are located in the corner of two high ways and are highly valuable. The earlier objections were also reiterated in the supplementary objections.

5. The petitioners were duly called for personal hearing in terms of Section 5A of the Act of 1894 and their objections were disposed of by a reasoned order passed by the Collector on 7th November, 2007.

6. Based on the said disposal of objection under Section 5A, the Collector by communication dated 13th November, 2007 recommended the acquisition to the State Government. Be it noted that the petitioners themselves had sought an adjournment of the initial notice of hearing that was fixed on 10th January, 2007 and filed the supplementary objection. While the Act did not conceive of filing of supplementary objections the State nevertheless accepted the same and duly considered both the petitioners’ objections under Section 5A of the Act of 1894.

7. The declaration under Section 6 of the Act was approved by the State Government on the 23rd of November, 2007 and published in the English and vernacular local newspapers on 25th and 26th November, 2007.

8. In fact both the declaration by the State Government under Section 6 and the decision of the State Government under Section 7 under which the Collector took order for acquisition of the land were decided in principle on the 23rd of November, 2007 itself.

9. It is relevant to note that out of 405 land owners/losers in respect of the 84 acres of land acquired, 400 persons neither challenged the acquisition nor filed any objection. The said 400 persons later accepted the award of compensation albeit some under protest. The compensation was paid by the State on funds supplied by the Collector. There is no other litigation pending in respect of the said acquisition.

10. The writ petition came to be filed by the 6 persons out of 405 land owners. Awards in respect of the 6 petitioners have also been passed. Compensation money was not, however, deposited in view of the pendency of the instant writ application.

11. Pointing out various omissions on the part of the State Authorities in applying with the provisions of Section 4, 5A, 6, 7 and 8, the petitioners contended that the process of acquisition suffers from infirmity and illegality and cannot be sustained, and the writ petition was filed. The State filed its affidavit in opposition and the petitioners a reply. A supplementary affidavit was also filed by the petitioners.

12. The petitioners would first argue that consideration of objection under Section 5A of the said Act of 1894 is not a mechanical exercise. The objections must be dealt with comprehensively by the Collector and must indicate application of mind in such process. Reliance in this regard is placed on the decision of Hon’ble Supreme Court in the case of Hindustan Petroleum Corporation Limited Vs. Darius Shapur Chenai & Ors. reported in (2005) 7 SCC 627 at Paragraph 15, 18 and 19 are particularly relied upon. The Paragraph 18 of the said decision is set out hereinbelow.

“18. In view of the fact that the action required to be taken by the State Government is distinct and different from the action required to be taken by the Collector; when the ultimate order is in question it was for the State to satisfy the court about the validity thereof and for the said purpose the counter-affidavit filed on behalf of a Collector cannot be held to be sufficient compliance with the requirements of law. The job of the Collector in terms of Section 5-A would be over once he submits his report. The Land Acquisition Collector would not know the contents of the proceedings before the State and, therefore, he would be incompetent to affirm an affidavit on its behalf.”

13. Applying the aforesaid dicta to the facts of the instant case, it appears from the order dated 31st October, 2007 that the petitioners’ objections were duly considered by the Collector. The petitioners were allowed to file a supplementary objection in addition to their original objection. The order of the Collector specifically records that the petitioners have neither been able to produce any plans nor shown to have taken any steps towards alleged proposal for establishment of Super Speciality Hospital. The location of the land was shown to be in harmony to the object and purpose of the acquisition. It was also demonstrated that the land was not been acquired for the purpose of any particular private individual company but for setting up of an industrial park.

14. It is useful to refer to the decision of the Hon’ble Supreme Court in the case of Raghbir Singh Sehravat Vs. the State of Haryana and Ors. reported in (2012) 1 SCC 792 at Paragraph 39 and 40 cited by Mr. Mahata, Counsel for the State. The Supreme Court had laid down as follows at Paragraph 40:

“40. Though it is neither possible nor desirable to make a list of the grounds on which the landowner can persuade the Collector to make recommendations against the proposed acquisition of land, but what is important is that the Collector should give a fair opportunity of hearing to the objector and objectively consider his plea against the acquisition of land. Only thereafter, he should make recommendations supported by brief reasons as to why the particular piece of land should or should not be acquired and whether or not the plea put forward by the objector merits acceptance. In other words, the recommendations made by the Collector must reflect objective application of mind to the objections filed by the landowners and other interested persons.”

15. It is clear from the above that the objections of the land owners must shown that the land proposed to be acquired is not suitable for the purpose for which acquisition was being made and that there is alternative land available to meet the requirement of acquisition. The objections filed by the petitioners do not clearly fulfil the aforesaid requirements. It could, therefore, be said that no substantial objection was raised by the petitioners under Section 5A of the Act of 1894.

16. The next objection of the petitioners is that the declaration under Section 6 of the Act, which is mandatorily required to be made within one year of the date of notification under Section 4 (1) of the Act of 1894, has been made one day after the expiry of statutory period of one year stipulated under Section 6 (1) Proviso (ii) of the said Act.

17. Reliance has been placed by the petitioners on the decision of the Hon’ble Supreme Court in the case of Ashok Kumar and Ors. Vs. State of Haryana and Anr. reported in (2007) 3 SCC 470. In the said decision at Paragraph 14-17 the Hon’ble Supreme Court laid

down as follows:

“14. Proviso (ii) appended to sub-section (1) of Section 6 of the Act clearly debars making of any declaration in respect of any particular land covered by a notification issued under sub-section (1) of Section 4 after the expiry of one year from the date of publication thereof. Explanation (1) appended to the said proviso, however, stipulates that in computing any of the periods referred to in the first proviso, the period during which any action or proceeding to be taken in pursuance of the notification issued under Section 4(1), is stayed by an order of a court, shall be excluded. On a plain reading of the aforementioned provisions, there cannot be any doubt whatsoever that the period which is required to be excluded would be one, during which the action or proceeding taken was subjected to any order of stay passed by a competent court of law.

15. Provisions of the Act should be construed having regard to the purport and intent thereof. Section 6 of the Act is beneficent to the landowners.

16. In Hindustan Petroleum Corpn. Ltd. v. Darius Shapur Chenai [(2005) 7 SCC 627] , it was held: (SCC p. 640, para 29)

“29. The Act is an expropriatory legislation. This Court in State of M.P. v. Vishnu Prasad Sharma [AIR 1966 SC 1593] observed that in such a case the provisions of the statute should be strictly construed as it deprives a person of his land without consent. [See also Khub Chand v. State of Rajasthan [AIR 1967 SC 1074] and CCE v. Orient Fabrics (P) Ltd. [(2004) 1 SCC 597] ]”

17. We have noticed hereinbefore that the proviso appended to sub-section (1) of Section 6 is in the negative term. It is, therefore, mandatory in nature. Any declaration made after the expiry of one year from the date of the publication of the notification under sub-section (1) of Section 4 would be void and of no effect. An enabling provision has been made by reason of the Explanation appended thereto, but the same was done only for the purpose of extending the period of limitation and not for any other purpose. The purport and object of the provisions of the Act and in particular the proviso which had been inserted by Act 68 of 1984 and which came into force w.e.f. 24-9-1984 must be given its full effect. The said provision was inserted for the benefit of the owners of land. Such a statutory benefit, thus, cannot be taken away by a purported construction of an order of a court which, in our opinion, is absolutely clear and explicit.”

18. In the instant case admittedly the notification under Section 4 was published on the 27th of November, 2006. The principal and supplementary objections of the petitioners were considered under Section 5A on or before 31st October, 2007. The declaration under Section 6 of the Act was published in local and vernacular, wildly circulated newspapers on the 24th and 25th of November, 2007 that is before the expiry of the deadline on the 26th of November, 2007. The publication in the gazette, however, occurred on the 27th of November, 2007. It would be hyper technical, farfetched and pedantic to hold that the delay of one day in the instant context would be fatal to the acquisition process, as the publication in the local newspapers was done on the 24th and 25th November, 2007.

19. It appears to this Court that the petitioners having been allowed adjournment of the hearing under Section 5A also having been allowed to file supplementary objections with benevolence by the State are now being used against State to allege delay for a period of one day to assail the acquisition process. This Court sees absolutely no reason whatsoever, to allow the petitioners to do so. In any event publication having occurred in local newspapers on the 24th and 25th admittedly to the knowledge of the petitioners, cannot be lost sight by this Court. The delay of one day, if at all, in the particular facts of the case cannot be fatal to the acquisition process. The petitioners’ contention in this regard, is therefore, liable to be and is rejected.

20. The next argument advanced by the petitioners is absence of any public purpose for the acquisition process. The petitioners would argue that the expression ‘Telecon and allied industries’ must be understood to mean that the acquisition was being made for the benefit of the Telecon, a private company. The expression allied industries according to the petitioners would mean associates of M/s. Telecon, a private company. It was also argued by the petitioners that there can be no public purpose in acquiring land for the benefit of a private company.

21. Mr. Mahata, counsel for the State, argued that the expression “allied industries” meant a large number of independent and other organisation both private and public not necessarily related to Telcon. The purpose of acquisition was to improve socio-economic condition of the area, generate employment, that consequently lead to the overall development of the area, the district and consequently of the State. The expression public purpose has been explained in detail in the case of Kedar Nath Yadav Vs. State of West Bengal reported in (2017) 11 SCC 601 at Paragraphs 88, 89, 90 and 91. Public purpose can be achieved even if acquisition is made for setting up a large scale industry and manufacturing cars by a private organisation.

“88. It is also a well-settled principle of law that if the manner of doing a particular act is prescribed under any statute the act must be done in that manner or not at all. In Babu Verghese v. Bar Council of Kerala [Babu Verghese v. Bar Council of Kerala, (1999) 3 SCC 422] , this Court has held as under: (SCC pp. 432-33, paras 31-32)

“31. It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all. The origin of this rule is traceable to the decision in Taylorv. Taylor [Taylor v. Taylor, (1875) LR 1 Ch D 426] which was followed by Lord Roche in Nazir Ahmad v. King Emperor [Nazir Ahmad v. King Emperor, 1936 SCC OnLine PC 41 : (1935-36) 63 IA 372] who stated as under: (SCC OnLine PC)

‘… where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all.’

32. This rule has since been approved by this Court in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh [Rao Shiv Bahadur Singh v. State of Vindhya Pradesh, AIR 1954 SC 322

: 1954 Cri LJ 910] and again in Deep Chand v. State of Rajasthan [Deep Chand v. State of Rajasthan, AIR 1961 SC 1527 : (1961) 2 Cri LJ 705] . These cases were considered by a three-Judge Bench of this Court in State of U.P. v. Singhara Singh [State of U.P. v. Singhara Singh, AIR 1964 SC 358 : (1964) 1 Cri LJ 263 (2)] and the rule laid down in Nazir Ahmad case [Nazir Ahmad v. King Emperor, 1936 SCC OnLine PC 41 : (1935-36) 63 IA 372] was again upheld. This rule has since been applied to the exercise of jurisdiction by courts and has also been recognised as a salutary principle of administrative law.”

89. In the instant case, what makes the acquisition proceedings perverse is not the fact that the lands were needed for setting up of an automobile industry, which would help to generate employment as well as promote socio-economic development in the State, but what makes the acquisition proceedings perverse is that the proper procedure as laid down under Part VII of the LA Act read with the Rules was not followed by the State Government. The acquisition of land for and at the instance of the Company was sought to be disguised as acquisition of land for “public purpose” in order to circumvent compliance with the mandatory provisions of Part VII of the LA Act. This action of the State Government is grossly perverse and illegal and void ab initio in law and such an exercise of power by the State Government for acquisition of lands cannot be allowed under any circumstance. If such acquisitions of lands are permitted, it would render entire Part VII of the LA Act as nugatory and redundant, as then virtually every acquisition of land in favour of a company could be justified as one for a “public purpose” on the ground that the setting up of industry would generate employment and promote socio-economic development in the State. Surely, that could not have been the intention of the legislature in providing the provisions of Part VII read with Section 3(f) of the LA Act.

90. From a perusal of the materials on record from the original files, the relevant extracts from the letters addressed by TML to the State Government of West Bengal and the Cabinet Notes which have been extracted and discussed supra, it becomes clear that in the instant case, the lands in question were acquired by the State Government for a particular company (TML), at the instance of that company. Further, the exact location and site of the land was also identified by TML. Even the notifications issued under Sections 4 and 6 of the LA Act clearly state that the land in question was being acquired for the “Small Car Project” of TML. In view of the foregoing reasons, by no stretch of imagination can such an acquisition of lands be held to be one for “public purpose” and not for a company. If the acquisition of lands in the instant case does not amount to one for the company, I do not know what would.

91. In view of the aforesaid categorical findings recorded by me based on the materials on record, including the Cabinet Memo, minutes of meetings between representatives of the State Government and TML as well as the notifications issued under Sections 4 and 6 of the LA Act, 1894, it is clear that the acquisition of lands in the instant case is for the company (TML). Admittedly, the procedure for acquisition as contemplated under Sections 39, 40 and 41 of Part VII of the LA Act read with Rules 3, 4 and 5 of the Land Acquisition (Companies) Rules, 1963 has not been followed, as the acquisition was sought to be guised as one for “public purpose” under Sections 3(f)(iii), (iv) and (vii) of the LA Act. The acquisition of land in the instant case in favour of the Company is thus, improper for not following the mandatory procedure prescribed under Part VII of the LA Act and the Rules and therefore the acquisition proceedings are liable to be quashed.”

22. It has already emerged from the facts related above that the WBIDC is wholly owned and controlled by the State of West Bengal is the requiring body for the acquisition. The said WBIDC has put in funds to the extent of Rs.50 crores for the purpose of the aforesaid acquisition as declared in their proposal dated 9th September, 2006. The land losers were paid out of such funds put in by the WBIDC.

23. The instant acquisition process, therefore, fulfils requirements of Section 6 since the 400 land losers have been paid out of funds put in by the WBIDC, the Requiring Body. Reference is made to the case of Urmila Roy and Ors. Vs. Bengal Peerless Housing Development Company Limited and Ors. reported in (2009) 5 SCC 242 particularly Paragraphs 38-44. The said industrial complex and/or a portion thereof is today called the ‘Vidyasagar Industrial Park’.

Paragraph 38 and 44 of the Urmila Roy Case (supra) is set out hereinbelow.

“38. A perusal of the second proviso and Explanation 2 of Section 6 in particular reveals that if the compensation awarded for the property is paid substantially out of the funds of a corporation owned or controlled by the State, such compensation will be deemed to be paid out of public funds and as such would satisfy the test of acquisition for a public purpose.

44. In the present case, as already mentioned above, we find that a substantial part of the compensation has, indeed, been paid by the State Government or by the Housing Board which clearly satisfies the test of public purpose. In this background, we endorse the finding of the Division Bench that the procedure envisaged in Part II and not in Part VII of the Act would be applicable. This is precisely what has been done.”

24. The petitioners next argued that by reason of non-deposit of the compensation money with the concerned Collector or the Court, the acquisition process is vitiated. The said issue arose in the context of The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act of 2013.

25. The consequence of any non-deposit of compensation is not relevant in the context of the Act of 1894. Admittedly the matter is sub-judice pending decision before a larger Bench of the Hon’ble Supreme Court on reference since the year of 2008.

26. The petitioners have obtained interim orders from Court restrain the State from taking steps in furtherance of the acquisition process. The State could not, therefore, have made the deposit and it does not lie in the mouth of the petitioners to, on one breath obtain interim orders against the State and in the same breath argue that non-deposit of compensation in Court as invalided acquisition proceedings. Reference must be made to Paragraph 155 of the decision of the Hon’ble Supreme Court in the case of Indore Development Authority Vs. Shailendra (through legal representative) & Ors. reported in (2018) 3 SCC 412.

“ Doctrine of Impossibility

155. In several cases it is often seen that the landowners are not ready to accept the compensation even though they have been offered the same; they have either refused to accept or have filed writ applications questioning the land acquisitions. Further, it is also observed, that repeatedly, successive writ applications have also been filed by the persons who have purchased the property after issuance of notification under Section 4 and, in some instances, even after passing of the award, possession taken and when the land has absolutely vested in the State Government, that such persons are calling into question the land acquisition. We have come across several cases when the challenges to acquisition have been negatived right up to this Court but, undeterred by the same, fresh round of litigation is, thereafter, started again, with the cause again being agitated either by the same persons or by some other such purchasers. It has come to our notice that now, after the coming into force of the 2013 Act, unsavoury attempts are being made to grossly misuse the process of law by moving such petitions, and asserting therein that though they themselves might not have accepted the compensation, and have refused to accept the same, but, since it has “not been paid to them”, by making deposit in court, or they have remained in the actual possession of the land, though panchnama of taking possession might have been drawn, as such, land acquisition has lapsed. The aforementioned assertions are being made; notwithstanding even earlier judicial finding that possession had been taken by drawing panchnama, etc. If Section 24 is interpreted in the method and manner so as to reopen all the cases, notwithstanding the fact that the landowners, or as the case may be their successors-in-interest are themselves responsible for not accepting or illegally refusing to accept the compensation, or that they have, in an illegal manner, re-entered into possession of land, then it becomes, and it has, in fact, become, virtually impossible for the State Governments to save and carry into effect the much-needed acquisition of the land, at the cost of public interest, leaving it with no viable legal defence with which to save the acquisition in such proceedings made decades before.”

27. In view of the above dicta of the Supreme Court as above, the argument of the petitioners in this regard cannot be sustained.

28. The petitioners would also argue that in terms of Section 8 of the said Act of 1894, the petitioners’ lands have not been demarcated. The petitioners argue that only portions of plots of land owned by them has been proposed to be acquired as already indicated in the facts of the narrated case hereinabove. The petitioners, therefore, contend that the process of acquisition is not complete. This Court finds that the answer to such argument has partially been addressed in answer to the previous point that the pendency of the instant writ application and the interim orders obtained by the petitioners could have prevented the State from taking steps under Section 8 of the aforesaid Act of 1894. In any event demarcation is but procedural matter since the extent and location of the part of the petitioners’ land has already been indicated in the notification and declaration.

29. The petitioners would thereafter argue that the market price of their land proposed to be acquired is much higher than what was actually offered to them. The petitioners, therefore, complain of inadequacy of compensation. The remedy of the petitioners according to this Court lies invoking the provisions of Section 18 of the Act of 1894 where a land loser, if not satisfied with the amount of compensation awarded can always seek reference and pray for actual assessment of compensation payable to him before the District Judge concerned. Admittedly the value of the land as stood on the date of issuance of the notification under Section 4 is what the petitioner would be entitled to. The petitioners’ argument is, therefore, weak and cannot be a ground to interfere with the acquisition proceedings.

30. The petitioners would lastly argue that the prior mandatory environmental clearance as required in the decision of the Hon’ble Supreme Court in the case of Karnataka Industrial Areas Development Board Vs. Sri C. Kenchappa & Ors. reported in AIR 2006 Supreme Court 2038 at Paragraph 97 has not been followed in the instant case. It must be noted firstly that the acquired lands are not purely agricultural. The state of West Bengal does not have a body called State Industrial Areas Development Board, similar to the State of Karnataka. The Industrial Units to be set up in the said Industrial Parks shall have to take mandatory environment clearance from the State Pollution Control Board. Hence the process of acquisition cannot be faulted on such score.

31. It has already been indicated, hereinabove, that out of 405 land losers 400 of them have already accepted compensation. It would be extremely unfair in the larger interest of the State and particularly the development of area concerned to interfere and thereby upset the instant process of land acquisition at the instance of 6 persons out of 405. It would useful to set out paragraphs 3 and 4 of the decision of the Hon’ble Supreme Court in the case of General Manager, Telecommunication and Anr. Vs. Dr. Madan Mohan Pradhan and Ors. reported in 1995 Supp. (4) SCC 268 Paragraph 3 and 4.

“3. The crucial question that arises for consideration is whether the High Court was right and justified in interfering with the acquisition. It is seen that out of the extent of Ac. 3.589, the claim of the respondents is only Ac. 0.240 dec. In other words, only around 1162 sq. yards. All others had accepted the award, a few of them under protest. It is common knowledge that possession would always be taken under a memo and handing over also would be under a memo. It is a recognised usual practice in all the acquisition proceedings. By operation of Section 17(1) even before award could be made, the Land Acquisition Officer is entitled to take possession of the land. He did so. The time mentioned in Section 9 stood expired by then. Even otherwise, award was made on 2-11-1976. By operation of Section 16 of the Act right, title and interest in the land vested in the Government absolutely free from all encumbrances. Thereby the Government became the absolute owner with effect from 12-4-1976. This Court in the case of Satendra Prasad Jain v. State of U.P. [(1993) 4 SCC 369] had held that once possession has been taken validity of the notification under Section 4(1) and declaration under Section 6 cannot be gone into and Section 11-A does not apply.

4. It is already seen that the possession having already been taken on 12-4-1976 and vested in the Government free from all encumbrances and many others having accepted the award and some had received the compensation under protest, the High Court was wholly unjustified in interfering with the acquisition. We have seen the plan produced before us which would indicate that the land acquired comprises the establishment of officers’ building and 2000 electronic exchange. Under these circumstances, it would be highly inconvenient to exclude this land from acquisition. The purpose of enquiry under Section 5-A is only to show that any other convenient and suitable land would be available other than the land sought to be acquired, or there is no public purpose. This issue would become an academic once the construction started and was in progress. The ratio in the case of Oxford English School v. Govt. of T.N. [(1995) 5 SCC 206] has no application to the facts of these appeals. In that case, neither the award was made before the amendment act has come into force nor was possession taken. In these circumstances, this Court held that declaration under Section 6 was invalid and direction given by the High Court to conduct enquiry under Section 5-A, after three years had expired, is illegal. Section 4(1) also stood lapsed by operation of proviso to Section 6 of the Act. Therefore, the ratio is clearly inapplicable to the facts of these appeals.”

32. In the instant case the Hon’ble Supreme Court had frowned upon interference with entire acquisition process at the instance of miniscule minority when the majority had accepted the same. In a democratic polity the larger interest of the populous has to be given weightage. The minuscule minority has to understand and accept the larger and more laudable need for overall development of the district and the economy of the State. Such larger interest is in the overall Socio-Economic development of the State. Employment generation, revenue income, poverty alleviation in an entire district must be given primacy over the small personal and individual shenanigans. Hence even assuming though not accepting that the objections of the six persons out of 405 land losers may have some merit, the same cannot be allowed to override the interest of greater public good.

33. In the aforesaid circumstances and particularly in the reference of the aforesaid Pradhan decision (supra), this Court is of the view that this writ petition cannot be sustained and is liable to be dismissed.

34. The rejection of the writ application shall, however, not bar the petitioners from seeking a reference under Section 18 of the aforesaid Act for revision of amount of compensation.

35. The original records pertaining to the subject acquisition process are returned to the Counsel for the State.

36. There shall be no order as to costs.

37. Urgent Xerox certified servers copy of this judgment, if applied for, be supplied to the parties on urgent basis.

(Rajasekhar Mantha J.)

Laxmi Pat Surana Versus Voltas Ltd.[CHC]-5 /7/ 2019

Section 34 of Arbitration and Conciliation Act –A Court whilst hearing an application under Section 34, requires to show more judicial restraint than in the process of an Appellate jurisdiction. An arbitration is an alternate dispute resolution where parties voluntarily decide to avoid the protracted and lengthy process of the Court. The vast jurisprudence on this aspect is never ending and multiplying everyday. If a Court is permitted to review the final decision of the arbitral tribunal both on law or on merits outside the permissible limits statutorily prescribed then the entire object of efficacy and efficiency of the Arbitral Tribunal would be rendered nugatory and infructuous.

IN THE HIGH COURT AT CALCUTTA

Civil Appellate Jurisdiction

ORIGINAL SIDE

BEFORE:

The Hon’ble Justice Soumen Sen

The Hon’ble Justice Ravi Krishan Kapur

A.P.O.T No.25 of 2019

G.A. No.789 of 2019

with

A.P. No.478 of 2017

Laxmi Pat Surana

Versus

Voltas Ltd.

For the Appellant

: Mr. Laxmi Pat Surana (In-person)

For the Respondent

: Mr. Chayan Gupta, Adv.

Mr. Sourajit Dasgupta, Adv.

Mr. Souvik Majumder, Adv.

Hearing concluded on : 26 June, 2019

Judgment on : 5 July, 2019

Ravi Krishan Kapur, J.:

1. This is an appeal under Section 37 of the Arbitration and Conciliation Act, 1996 (“the Act”). In this appeal, the appellant has challenged an order and judgment dated 6 December, 2018 (“impugned order”) whereby the Learned Single Judge had dismissed an application filed under Section 34 of the Act challenging an award dated 28 March, 2017 (“impugned award”) passed by the Sole Arbitrator.

2. The question before the Sole Arbitrator concerned a claim for price of goods sold and delivered and for services rendered. By the impugned award, the Arbitrator has directed the appellant to pay a sum of Rs.22,31,532.00/- alongwith interest @ 6% per annum from November 19, 2008 till realisation of its dues to the respondent.

3. Briefly stated, by a contract dated 7 April, 2007 the appellant had placed a work order for design, engineering, testing and commissioning of a water cooler type central air-conditioning system for a complex situated at Kharagpur. The respondent accepted the work order and by a letter dated 20 April, 2007 confirmed the value of the entire project at Rs.1,24,23,086/- subject to levy of statutory duties and taxes. The contract provided that the entire work was to be completed by the respondent by 30 June, 2007. The other terms and conditions of the contract stipulated that the respondent was to provide warranties/guarantees and satisfactory completion certificates upon completion of the said work and completion of a performance test. Admittedly, the respondent provided a handing over certificate on 21 August, 2008. The claim of the respondent before the Arbitrator was for price of goods supplied and delivered.

4. It is the case of the respondent that notwithstanding satisfactory completion of the work, the claimant had failed to pay the balance sum of Rs.22,31,532.60/- inclusive of interest. On the other hand, the appellant had filed a counterclaim for an amount of Rs.4,32,81,496.20/- under various heads including for liquidated damages. It is an admitted position that before the Arbitrator at the 22nd

sitting, the appellant withdrew five of his initial claims after which the counterclaim was restricted to Rs.6,21,154.30/- on account of liquidated damages and for delay in completion of works by the respondent. The appellant also claimed an additional amount on account of the delay in execution of works and cost of electricity. It was the primary grievance of the appellant that the respondent had failed, neglected and refused to carry out the performance test as stipulated under the contract despite repeated reminders on 5 September 2008, 6 January 2009, 16 June 2009, 28 June 2010 and 11 August, 2010. The appellant further contended that he was ready and willing to make payment to the respondent but only on the contractual terms and after completion of all the obligations of the respondent under the contract. The appellant also contended that the respondent was liable to compensate the claimant for the delay in completion of the works.

5. Mr. L. P. Surana, the appellant (appearing in-person), contended that the award passed by the Arbitrator is erroneous both on facts and on law and is liable to be set aside. He urged that the award was based primarily on the admissions of the claimant contained in the letter dated 16 June, 2009, wherein the appellant had recorded its appreciation for the good air conditioning and plant installation and commissioning by the respondent and further requested them to continue to provide the good services for the proper operation and maintenance of the air conditioning system. In the said letter, the appellant had also sought for time to make payment of the balance amount to the respondent on the ground of facing acute financial crisis. It was further contended by the appellant that the said letter did not contain an unequivocal and categorical admission of liability and the same should have been read alongwith the other letters dated 16 June 2009, 28 June 2010 and 11 August, 2010 exchanged between the parties. Accordingly, it was contended, that the Arbitrator erred in his appreciation of the facts and circumstances of the case and failed to give due weight to all the correspondence which had been exchanged between the parties. It was also contended, that the performance test which the respondent was obliged to do under the contract was not performed and as such the respondent was in breach of its obligations under the contract and the appellant should have been compensated for the breach by the respondent. It was further contended, that the claim for liquidated damages on account of delay in execution of the contract by the respondent ought to have been awarded and the Arbitrator erred in not awarding the same. The appellant also contended that there was no performance test, no guarantees and no warranties which had been furnished by the respondent and this was in violation of the terms and conditions of the contract.

6. Mr. Gupta, the learned counsel appearing on behalf of the respondent, supported the impugned award and the impugned order passed by the learned Trial Court on the ground that there were no grounds made out warranting interference with the impugned award and the impugned order. He emphasised that the appellant had failed to show any ground under Section 34 which could be attracted in the facts and circumstances of the instant case. He submitted that the admission contained in the letter dated 16 June, 2009 relied on by the Arbitrator in passing the impugned award was clear, unequivocal and unambiguous. He submitted that the warranties and the guarantees under the contract had been duly furnished by the respondent and this was a fact which was duly dealt with in the pleadings filed before the Arbitrator. He further submitted that the condition for carrying out the performance test was given a go-bye by the parties since the appellant was satisfied with the working of the air-conditioning system which had been set up by the respondent and had not complained for a long period after installation. He placed much emphasis on the letter dated 16 June, 2009 wherein the appellant had unequivocally recorded its appreciation for the good air conditioning plant installed by the respondent. In this background, he submitted that there was no question of interference with the impugned order or the impugned award. Accordingly, he submitted that the instant appeal was liable to be dismissed with costs.

7. We do not find it necessary to multiply the references. It is sufficient to recall some of the legal principles which have emerged from a vast body of ever-growing case law of the various High Courts and the Hon’ble Supreme Court of India pertaining to Section 34 of the Act that may be summarised as follows:

a) On a cumulative reading of Section 5 and Section 34 of the Act, it is now well settled that an award passed by an Arbitrator can be set aside on the limited grounds and the supervisory role of a Court is reduced to a minimum level.

b) It is not permissible for a Court to examine the correctness of the findings of the Arbitrator as if it were sitting in appeal overj an award. As such, a Court while considering the objections under Section 34 of the Act is not expected to re-appreciate the entire findings and re-assess the whole case of the parties.

c) If the conclusion or the final decision of the Arbitrator is based on a possible view of the matter, a Court should not interfere with an award. Generally, the conclusion of the Arbitrator with regard to the construction of a contract is not to be interfered with, if there is a plausible view of the matter, and even an error relatable to interpretation of the contract by an Arbitrator is regarded as an error within its jurisdiction and as such it is an error which is not amenable to correction by Courts.

d) “A perverse finding is one which is based on no evidence or one that no reasonable person would have arrived at. Unless it is found that some relevant evidence has not been considered or that certain inadmissible material has been taken into consideration the finding cannot be said to be perverse. A broad distinction has, therefore, to be maintained between the decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse.” But, if there is some evidence on record which is acceptable and which could be relied upon, howsoever concise it may be, the conclusions would not be treated as perverse and the findings would not be interfered with.

8. The aforesaid principles have been repeatedly reiterated by the different Courts in India including the Hon’ble Supreme Court. Some of the authorities that can be cited which reiterate the aforesaid principles are McDermott International Inc. Vs. Burn Standard Co. Ltd. (2006)

11 SCC 181 (para 52), Steel Authority of India Vs. Gupta Brothers Steel Tubes Limited (2009) 10 SCC 63 (paras 27 to 30), Sumitomo Heavy Industries Limited Vs. Oil and Natural Gas Corporation (2010) 11 SCC 296 (paras 36 to 44), Navodaya Mass Entertainment Ltd. Vs. J.M. Combines (2015) 5 SCC 698 (paras 8 and 9), MMTC Ltd. Vs. Vedanta Ltd. (2019) 4 SCC 163 (paras 11 to 26), SSangyong Engineering & Construction Co. Ltd. Vs. National Highways Authority of India 2019 SCC Online SC 677 (paras 38 and 39), Associate Builders Vs. Delhi Development Authority (2015) 3 SCC 49 (paras 32, 34 and 52), MTNL Vs. Fujitshu India Private Limited 2015 (2) ArbLR 332 (Delhi), and Mahanagar Telephone Nigam Ltd. Vs. Finolex Cables Limited reported at 2017 (166) DRJ 1.

9. In Associate Builders Vs. Delhi Development Authority (supra) at para 33 it has been held as follows:

A possible view by the arbitrator on facts has necessarily to pass muster as the arbitrator is the ultimate master of the quantity and quality of evidence to be relied upon when he delivers his arbitral award. Thus, an award based on little evidence or on evidence which does not measure up in quality to a trained legal mind would not be held to be invalid on this score. Once it is found that the arbitrators approach is not arbitrary or capricious, then he is the last word on facts.”

10. The primary grievance of the appellant is that the Arbitrator erred in placing reliance on the letter dated June 16, 2009 and in construing the same to be an acknowledgement of liability. According to the appellant, there was other correspondence dated January 6, 2009, June 16, 2009, June 28, 2010 and August 11, 2010, exchanged between the parties which could explain the admission. The appellant further submitted that on a construction of all the correspondence exchanged between the parties the admission relied on by the Arbitrator was neither unambiguous nor clear nor unconditional. Thus, according to him the admission could be explained away.

11. A perusal of the award would reveal that the Arbitrator has dealt with the aspect of the admission at paragraphs 16 to 21 of the impugned award. The Arbitrator has meticulously considered all the correspondence. He has interpreted the letter dated June 16, 2009 as an acknowledgement of liability and an existence of a jural relationship (Paragraph 20). At paragraph 21 of the impugned award, the Arbitrator has dealt with the other letters dated 5 September, 2008, 6 January, 2009, 16 June, 2009, 28 June, 2010 and 11 August, 2010 and interpreted the same to record an assurance of payment and that the appellant was facing financial stringency. At paragraph 22 of the impugned award, the Arbitrator has dealt with the defence of the appellant, that the letter dated 16 June, 2009, was procured by the respondent and was written in good faith. The Arbitrator after considering the defence has disbelieved the same. The argument on behalf of the appellant that even on the aspect of the letter dated 16 June, 2009 bearing no.MC/VOLTAS/09-10/041 not being addressed by the Arbitrator, the Arbitrator has held at para 27 of the impugned award that the same appears to be “an afterthought”.

12. In the impugned judgment, the Learned Single Judge has also dealt with this grievance of the appellant at paragraphs 11 and 13 of the impugned judgment. The Learned Judge after considering the grievance of the appellant and the impugned award has arrived at a conclusion that the Arbitrator after duly considering the correspondence has interpreted the same and given reasons for his conclusion. The Learned Judge has then concluded that the award cannot be interfered with either on the ground of patent illegality or perversity or unreasonableness or on any other grounds.

13. For the foregoing reasons, we find that the objections raised by appellant have been duly considered both by the Arbitrator and the Learned Single Judge. As stated hereinbefore, there are limits to our powers of reviewability under Section 34 of the Act. We are fully mindful of the fact that we are not sitting as an Appellate Court over the Arbitrator’s decision. We cannot reappraise or re-examine the evidence. The view taken by the Arbitrator is a plausible view. It may not be the only correct view, but it is a possible view. The Arbitrator has dealt with all the points which were raised by the appellant. We do not find any perversity or unreasonableness in the findings of the Arbitrator. Hence, we find no merit in this objection raised by the appellant and accordingly, reject the same.

14. The next point urged on behalf of the appellant was that the respondent was in breach of the contract and therefore not entitled to claim payment in full. It was submitted on behalf of the appellant that on a reading of Clause 5 (d) of the contract the respondent was only entitled to the entire consideration after it had conducted the performance test. It was further submitted by the appellant that since the performance test had not been conducted in terms Clause 5 of the contract and upon production of relevant documents the respondent was not entitled to the entire consideration. To this extent, it was submitted on behalf of the appellant that the learned Arbitrator misconstrued the terms of the contract and the letters exchanged between the parties, particularly those relating to withholding of payment to the respondent by reasons of the performance test not having been carried out. We find that this aspect of the matter has been duly considered by the Arbitrator at paragraphs 21, 22, 24, 28 and 29 of the impugned award and the Arbitrator after construing Clause 5 (d) and the correspondence exchanged between the parties has come to a finding that the plant was handed over on 21 August, 2008 and apart from a report of a snag as recorded in the letter dated 4 December, 2008 the appellant had not made any complaint in respect of performance of the air conditioning system. The Arbitrator has held that the respondent had not alleged in any of the letters that the performance was not satisfactory. In fact, at paragraph 29 of the impugned award the Arbitrator has come to a finding that Clause 5 (d) did not authorize the appellant to withhold payment when commissioning and functioning of the plant had been acknowledged on several occasions even as late as on June 16, 2009. Accordingly, the Arbitrator has rejected this contention of the appellant.

15. We are also of the view that the Learned Single Judge has dealt with this objection raised by the appellant and has come to a finding that the impugned award contained reasons based on relevant materials and was not liable to be interfered with. We are of the view that the jurisdiction of a Court being limited, the interpretation of the contract and the correspondence exchanged between the parties is based on a possible view of the matter submitted to the Arbitrator. It is not the role of the Court to deduce the implications of the contract in question or the correspondence exchanged between the parties and any error relatable to interpretation of the contract by an Arbitrator is an error within his jurisdiction and as such not amenable to correction by a Court. We do not find that the view taken by the Arbitrator on this aspect of the matter is either perverse or capricious or incongruous or incompatible with the terms of the contract or the correspondence exchanged between the parties. The Arbitrator has given due weight to the fact that the appellant had not raised any contemporaneous objection with regard to the working of the air conditioning system. On the contrary, the Arbitrator has come to a specific finding that the letters written by the appellant reflected that the appellant was admittedly satisfied with the working of the air conditioning system. Additionally, the Arbitrator has also given due weightage to the fact that the expert witness on behalf of the appellant had not given any evidence as to any malfunctioning of the air conditioner at the relevant point of time. For these reasons, we find no merit in the objection raised by the appellant and reject the same as being without any basis.

16. The next contention raised on behalf of the appellant was that the appellant was entitled to liquidated damages for delayed execution of the work and had claimed a sum of Rs.6,21,154.30/-. In this connection, the appellant had pleaded in its counterclaim (at paragraph 14 of the counter statement) and had relied on Clause 7 of the contract which dealt with the aspect of compensation/completion of the work. In the impugned award, the Arbitrator has dealt with this aspect at paragraphs 31 to 37 of the impugned award and has come to a finding that the claim for liquidated damages was barred by limitation and the entire claim was an “afterthought”. The Arbitrator has also held that there is no evidence to show that the parties actually treated time to be essence of the contract or at that time of handing over the said plant the same was accepted subjected to the claim on account of the liquidated damages. In the impugned order, the Learned Single Judge has addressed this issue at paragraph 14 of the impugned order and has found no merit in this objection raised by the appellant.

17. We are of the view that the interpretation adopted by the Arbitrator is neither capricious nor misconceived nor incompatible nor inconsistent with the terms of the contract. The view of the Arbitrator is a possible view of the matter and it was legitimate for the Arbitrator to accept the available interpretation even though we may think that other views could be preferable. In any event, we find no perversity or illegality or any error on the face of the record of the impugned award. As such, there is no merit to this objection raised by the appellant and the same is also rejected.

18. It was next argued on behalf of the appellant that no guarantees or warrantees in terms of Clause 11 of the contract had been furnished by the respondent. We are of the view that this aspect of the matter has been taken care of in the pleadings filed by the parties and though the appellant had raised an issue regarding non-furnishing of guarantees and warrantees in the counter statement, the respondent had duly dealt with same in its reply. As such, there is no merit to this objection which warrants any interference with the impugned award.

19. The next issue raised by the appellant was that of interest. It was submitted on behalf of the appellant that there is a complete bar for payment of interest in the contract and that the respondent is not entitled to any interest in terms of the contract. The Arbitrator has dealt with this issue at paragraphs 35 to 38 of the impugned award. The Arbitrator has interpreted Clause 18 of the contract as per the Regulations of the Indian Railways. The Arbitrator has also relied on Clause 16.3 of the conditions of the contract of the South Eastern Railway and has come to a finding that the same has no application to the contract between the claimant and the respondent. The Arbitrator has also relied on the letter dated 17 April, 2017. At paragraph 38 of the impugned award, the Arbitrator has held that even though there is no agreement on account of interest the respondent was entitled to interest at the rate of 6% per annum from 19 November, 2008 till realization of its dues.

20. We are of the view that the aspect of grant of interest has also been duly dealt with by the Arbitrator and we are unable to hold that the Arbitrator has committed any illegality or perversity or contravened any law in awarding the sum of 6% as interest from the due date. Accordingly, this contention of the appellant also stands rejected.

21. In conclusion, we find that the Arbitrator in passing the impugned award has dealt with each of the issues raised by the appellant in the present proceedings before us. The appellant has been unable to show any ground under Section 34 or otherwise of the Act which would come to its aid in the instant case. There is nothing that the appellant has been able to show which warrants any interference with the impugned award. We are satisfied that the Learned Single Judge in passing the impugned order has not committed any error either in law or on facts. The discretion exercised by the Learned Single Judge in dismissing the application under Section 34 of the Act is neither arbitrary nor capricious nor irrational.

22. At the cost of repetition, it is important to remind ourselves sitting in this jurisdiction that a Court whilst hearing an application under Section 34, requires to show more judicial restraint than in the process of an Appellate jurisdiction. An arbitration is an alternate dispute resolution where parties voluntarily decide to avoid the protracted and lengthy process of the Court. The vast jurisprudence on this aspect is never ending and multiplying everyday. If a Court is permitted to review the final decision of the arbitral tribunal both on law or on merits outside the permissible limits statutorily prescribed then the entire object of efficacy and efficiency of the Arbitral Tribunal would be rendered nugatory and infructuous.

23. For the foregoing reasons as discussed above, the impugned order passed by the Learned Single Judge and the impugned award is upheld. Accordingly, the instant appeal fails, and the connected application also stands dismissed. However, there shall be no order as to costs.

I agree.

(Soumen Sen, J.) (Ravi Krishan Kapur, J.)