THE HON’BLE SRI JUSTICE K.C.BHANU
CRIMINAL PETITION NO. 1252 OF 2012
O R D E R:
This Criminal Petition is filed under Section 482 read with 167 (2) of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’) challenging the order dated 30.01.2012 in Crl.M.P. No.212 of 2012 in R.C. No.18 (A)/2011 passed by the learned Special Judge for CBI Cases, Hyderabad.
2. The petitioner filed the said petition before the Special Judge under Section 167 (2) Cr.P.C. for grant of police custody of respondent/A.7 for a further period of 7 days. The said petition was dismissed by the learned Special Judge on the ground that police custody of respondent/A.7 was given for three days from 28.1.2012 to 30.1.2012, for which the counsel for the respondent/A.7 also fairly conceded, and that it cannot be said that there would be some sort of co-operation from the side of respondent/A.7 if some period of custody is given to CBI.
3. Learned Special Public Prosecutor for CBI Cases Sri P.Kesava Rao appearing for the petitioner contended that the limited period of police custody of the respondent/A.7 is not sufficient as voluminous documents have to be confronted with the respondent/A.7 during the course of investigation and hence he prays to grant further police custody of the respondent/A.7.
4. On the other hand, Sri C.Padmanabha Reddy, learned senior counsel appearing for the respondent/A.7 contended that the respondent/A.7 was already given to police custody for three days from 28.1.2012 to 30.1.2012; that there is no material to show that the respondent/A.7 received crores of rupees by one of the accused Ranga Rao; that the said Ranga Rao, who is the main accused, has been granted anticipatory bail; that the respondent/A.7 is nothing to do with any one of the companies in which the involvement of the government land is concerned; that right to examination cannot include right against self-incrimination and therefore he prays to dismiss the criminal petition as the learned Special Judge did not commit any irregularity in passing the impugned order.
5. Central Bureau of Investigation (CBI) registered case RC No.18(A)/2011-CBI-HYD on 17.08.2011 for the offences punishable under Sections 120B read with 420, 409, 477A of the Indian Penal Code, 1860 (IPC) and 13 (2) read with 13 (1) (c) and (d) of the Prevention of Corruption Act, 1988. The respondent is arrayed as A.7 in the said crime. The reason given by the petitioner/CBI for extension of police custody of the respondent/A.7 is that during the limited period of police custody for three days, confrontation with the respondent/A.7 with the documents collected during investigation could not be completed as the same was voluminous, and that the investigation was at initial stage and so custodial interrogation of respondent/A.7 is essential to ascertain the end users of the excess money collected from villa/plot buyers.
6. The petitioner/CBI registered the case alleging inter alia that A.1 and others entered into a criminal conspiracy with EMMAR properties and some other companies to cheat M/s. APIIC at Hyderabad and other places during the years 2005-2010 and in furtherance of the alleged criminal conspiracy, M/s. EMMAR PJSC entered into agreement with M/s. Stylish Homes Real Estates Private Limited to sell villa plots at a pre-determined price which was less than the market value without the knowledge and consent of M/s. APIIC Board; that A.1 abused his official position by corrupt and illegal means and he knowingly and intentionally did not object to the sale of villa plots at lesser price; that, the Integrated Project consisting of Golf Course, Club House, Boutique Hotel, Township, Convention Centre and Business Hotel, to be developed at Ac.535.00 of land at Manikonda and the leased land at HITEX was awarded to M/s. Emmar Properties PJSC, Dubai. In the first instance, the Vigilance Department conducted enquiry and seized a Laptop relating to the sale transactions whereunder the actual price for which each villa/villa plot was sold. But, as against the market value, price was mentioned as Rs.5,000/- per square yard in the year 2010. It is the further alleged that actual market price of the land is more than Rs.50,000/- per square yard, and that the internal correspondence between the petitioner and some others retrieved from the Laptop of the accused, it is mentioned that none of the parties submitted any formal applications for allotment of villa plots and thereafter the petitioner obtained letters from the Directors of 10 companies as if the allottees have requested for cancellation of Memorandum of Understanding and prepared cancellation letters in the months of November and December, 2010, ante-dating letters of cancellation.
7. It is the case of the prosecution that one of the accused sold the plots/villas at higher rates than the rates mentioned in the documents and collected crores of rupees and that out of the said amount, certain amount was given to the respondent/A.7, and that end users of the said excess money has to be ascertained by examining the accused.
8. Learned counsel for the petitioner relied on a decision in Central Bureau of Investigation, Special Investigation Cell-I, New Delhi v. Anupam J.Kulkarni, wherein it is held thus: (para 10).
“The learned Additional Solicitor General, however, submitted that in some of the cases of grave crimes it would be impossible for the police to gather all the materials within first fifteen days and if some valuable information is disclosed at a later stage and if police custody is denied the investigation will be hampered and will result in failure of justice. There may be some force in this submission but the purpose of police custody and the approach of the legislature in placing limitations on this are obvious. The proviso to 9 Section 167 is explicit on this aspect. The detention in police custody is generally disfavoured by law. The provisions of law lay down that such detention can be allowed only in special circumstances and that can be only by a remand granted by a magistrate for reasons judicially scrutinised and for such limited purposes as the necessities of the case may require. The scheme of Section 167 is obvious and is intended to protect the accused from the methods which may be adopted by some overzealous and unscrupulous police officers. Article 22 (2) of the Constitution of India and Section 57 of Cr. P.C. give a mandate that every person who is arrested and detained in police custody shall be produced before the nearest magistrate within a period of 24 hours of such arrest excluding the time necessary for the journey from the place of the arrest to the Court of the magistrate and no such person shall be detained in the custody beyond the said period without the authority of a magistrate. These two provisions clearly manifest the intention of the law in this regard and therefore it is the magistrate who has to judicially scrutinise circumstances and if satisfied can order the detention of the accused in police custody. Section 167(3) requires that the magistrate should give reasons for authorising the detention in the custody of the police. It can be thus seen that the whole scheme underlying the section is intended to limit the period of police custody. However, taking into account the difficulties which may arise in completion of the investigation of cases of serious nature the legislature added the proviso providing for further detention of the accused for a period of ninety days but in clear terms it is mentioned in the proviso that such detention could only be in the judicial custody. During this period the police are expected to complete the investigation even in serious cases. Likewise within the period of sixty days they are expected to complete the investigation in respect of other offences. The legislature however disfavoured even the prolonged judicial custody during investigation. That is why the proviso lays down that on the expiry of ninety days or sixty days the accused shall be released on bail if he is prepared to and does furnish bail. If as contended by the learned Additional Solicitor General a further interrogation is necessary after the expiry of the period of first fifteen days there is no bar for interrogating the accused who is in judicial custody during the periods of 90 days or 60 days. We are therefore unable to accept this contention.”
Even from the above decision, it is clear that the Magistrate has to judicially scrutinize the material on record for the purpose of granting police custody.
9. The learned counsel for the respondent/A.8 also relied on a decision in Selvi & others v. State of Karnataka wherein it is held thus: (paras 90 & 91).
“Undoubtedly, Article 20(3) has an exalted status in our Constitution and questions about its meaning and scope deserve thorough scrutiny. In one of the impugned judgments, it was reasoned that all citizens have an obligation to co- operate with ongoing investigations. For instance reliance has been placed on Section 39, CrPC which places a duty on citizens to inform the nearest magistrate or police officer if they are aware of the commission of, or of the intention of any other person to commit the crimes enumerated in the section. Attention has also been drawn to the language of Section 156(1), CrPC which states that a police officer in charge of a police station is empowered to investigate cognizable offences even without an order from the jurisdictional magistrate. Likewise, our attention was drawn to Section 161(1), CrPC which empowers the police officer investigating a case to orally examine any person who is supposed to be acquainted with the facts and circumstances of the case. While the overall intent of these provisions is to ensure the citizens’ cooperation during the course of investigation, they cannot override the constitutional protections given to accused persons. The scheme of the CrPC itself acknowledges this hierarchy between constitutional and statutory provisions in this regard. For instance, Section 161(2), CrPC prescribes that when a person is being examined by a police officer, he is not bound to answer such questions, the answers of which would have a tendency to expose him to a criminal charge or a penalty or forfeiture.
Not only does an accused person have the right to refuse to answer any question that may lead to incrimination, there is also a rule against adverse inferences being drawn from the fact of his/her silence. At the trial stage, Section 313(3) of the CrPC places a crucial limitation on the power of the court to put questions to the accused so that the latter may explain any circumstances appearing in the evidence against him. It lays down that the accused shall not render himself/herself liable to punishment by refusing to answer such questions, or by giving false answers to them. Further, Proviso (b) to Section 315(1) of CrPC mandates that even though an accused person can be a competent witness for the defence, his/her failure to give evidence shall not be made the subject of any comment by any of the parties or the court or give rise to any presumption against himself or any person charged together with him at the trial. It is evident that Section 161(2), CrPC enables a person to choose silence in response to questioning by a police officer during the stage of investigation, and as per the scheme of Section 313(3) and Proviso (b) to Section 315(1) of the same code, adverse inferences cannot be drawn on account of the accused person’s silence during the trial stage.”
There is no dispute about the proposition of law laid down by the Hon’ble Supreme Court of India. Article 20 (3) of the Constitution of India, no person accused of any offence shall be compelled to be a witness against himself. Under Section 162 (2) Cr.P.C., any person shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture. However, law permits that the police can conduct investigation in respect of a cognizable offence and investigation includes examination of accused. For eliciting the facts within the knowledge of the accused, examination of the accused is also permissible under law. In other words, police may examine any person supposed to be acquainted with the facts and circumstances of the case. Considering the gravity and magnitude of the case and in view of the fact that voluminous documents seized by CBI during the course of investigation have to be confronted with the respondent/A.7, the period of police custody granted by the learned Sessions Judge may not be sufficient for interrogation. Hence, further police custody of the respondent/A.7 for a period of three days can be granted from 04.02.2012 onwards.
10. The respondent/A7 is directed to be given to police custody to the petitioner-CBI officials for a period of three days from 04.02.2012 to 06.02.2012 (both days inclusive) from 8.00 AM to 6.00 PM. The Superintendent of the Prison, where the respondent/A7 is in custody, is directed to hand over custody of the respondent/A7 to petitioner-CBI officials everyday at 8.00 AM and the petitioner-CBI officials shall hand over the respondent/A7 to the prison authorities at 6.00 PM. Since it is the apprehension of the respondent/A7 that the CBI officials may resort to third degree methods during interrogation in police custody, it is directed that the respondent/A7 shall be interrogated before the Advocate of his choice, and that before handing over the respondent/A7 to the prison authorities, he shall be subjected to examination by a competent Civil Assistant Surgeon and along with his certificate with regard to health condition of the respondent/A7, the respondent/A7 shall be handed over to the concerned prison authorities.
11. The Criminal Petition is, accordingly, allowed.
THE HON’BLE SRI JUSTICE K.C.BHANU
CRIMINAL PETITION NO. 1252 OF 2012
- WHAT IS CUSTODY = in obtaining bail, the accused never stated that he is in judicial custody but said that he was harassed by the police . no misrepresentation in obtaining bail and as such cancellation bail not arise = the defacto-complainant who is see (advocatemmmohan.wordpress.com)