IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN, JAIPUR BENCH JAIPUR. O R D E R THE STATE OF RAJASTHAN Vs. Ravishankar Srivastava S.B. CRIMINAL MISCELLANEOUS CANCELLATION OF BAIL APPLICATION NO.3980 OF 2004 STATE OF RAJASTHAN VS. AJAY DATA S.B. CRIMINAL MISCELLANEOUS CANCELLATION OF BAIL APPLIATION NO.3844 OF 2004 DATE OF ORDER ::: 24TH JUNE, 2005. PRESENT HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN Mr. Mohd. Rafiq, Addl. Advocate General for the State Mr. S.S. Hora, for non-applicant R.S. Srivastava Mr. A.K. Gupta, for non-applicant Ajay Data Reportable // By the Court : 1. The State of Rajasthan has filed these two applications under Section 439 (2) Cr.P.C. for cancellation of order granting bail to the accused-non- applicants by Mr. R.S. Rathore, RHJS, Special Judge, Sessions Court (Prevention of Corruption Act) Jaipur, (for short “Special Judge”), in FIR No.109/2004 of Anti Corruption Bureau, Jaipur. The Special Judge has granted bail to accused-non-applicant R.S. Srivastava (here-in-after referred as “an accused”) vide order dated 10th August 2004 on an application under Section 167 (2) Cr.P.C., whereas the another accused-non- applicant Ajay Data (here-in-after referred as “co- accused”) has been allowed bail under Section 437 Cr.P.C. vide order dated 11.08.2004. Both the applications under Section 439 (2) Cr.P.C. arise from FIR No.109/2004 of Anti Corruption Bureau, Jaipur and both the orders have been passed in the same FIR by the the same Judge, therefore, both these applications are disposed of by a common order. 2. The facts in brief are that on 9th June, 2004, two first information reports bearing No.109/2004 (for short “First FIR”) and 110/2004 (for short “second FIR”) were registered against accused R.S. Srivastava and others by Anti Corruption Bureau, Jaipur for offences under Sections 7,8, 13 (1) (a) and 13 (1) (d) (2) of the Prevention of Corruption Act, 1988 read with Section 120-B IPC. (i) In the first FIR, it was alleged that on 23.05.2004, an information was received that accused R.S. Srivastava, IAS, who was holding the post of Member, Revenue Board, Rajasthan, Amer, had decided a revenue case pending before him, namely, Smt. Kamla Devi Vs. State on 21.05.2004 against the plaintiff. Later-on 9 persons came from Dholpur and met the Member, Board of Revenue, Mr. R.S. Srivastava, who agreed to decide the case in favour of plaintiff on bribe of Rs.30 lacs. Mr. Suresh Bansal, Raminwas Lawania, Mahesh and Others remained in contact with accused to finalize the deal and other terms as to when and where and to whom the amount of illegal gratification is to be paid. Thereafter, accused suggested to file review petition and assured that in case payment of Rs.5 lacs is made by 3rd or 4th June, then he will decide the case within 3-4 days. He also assured that he will grant interim stay order in review petition. It was also agreed that Shri Suresh Bansal, Advocate, resident of Dholpur and Ram Niwas Lawania will make the payment of first installment of Rs.5 lacs. During verification of the facts and investigation thereof, it transpired to the Anti Corruption Bureau that nine persons stayed in one hotel at Jaipur. Thereafter payment of Rs.5 lacs was paid to co-accused Ajay Data at the instance of accused and ultimately the review petition was allowed by accused R.S. Srivastava, Member, Board of Revenue, Rajasthan, Ajmer, on 07.06.2004 itself without pronouncing judgment in open Court. (ii) The second FIR was registered in respect of some other revenue cases bearing Nos.2001/04,2002/04 and 2003/04 relating to N.B.C. Unit of Birla Group situated at Jaipur in respect of a land measuring 54 acres. It was alleged that after settling huge amount as bribe or some share in the land, the accused decided the said revenue cases in favour of the concerned party. (iii) The accused R.S. Srivastava was arrested on 10th June 2004 in second FIR No.110/04. He was not arrested in the first FIR No.109/04. The first FIR was relating to land situated at Dholpur and was subject matter of revenue case titled as Smt. Kamla Devi Vs. State. The second FIR was in respect of another land which was subject matter of other cases and the land in dispute was situated at different places. The co-accused persons in both the FIRs are also different except Mr. Pande, P.A., of main accused. 3. Facts relating to accused R.S. Srivastava (i) The accused, while in custody in second FIR, moved an application for anticipatory bail under Section 438 Cr.P.C., before the Special Judge in first FIR on 22nd June, 2004, a copy of which has been placed on record as Annex.1, wherein the main accused, in para 2, specifically mentioned that he has been arrested in second FIR but has not been arrested in the first FIR. The Investigating Officer filed written reply for rejection of above application, wherein it was mentioned that another co-accused Ajay Data is being searched and will be arrested very soon, thereafter, sufficient evidence will be available in the police diary and prosecution will make an application for taking police custody of accused in first FIR No.109/04. The aforesaid application was rejected by the Special Judge, vide its order dated 25.06.2004, which is reproduced as under:- “APP present. Counsel for the accused present. ACB submitted an application, stating that some interrogation was done in the case while the accused was in police custody in the other case 110/04, as per the note incorporated in the case diary of 109/04. While some important evidence has been collected, yet much investigation needs to be done to bring about cogent evidence to make the arrest of the accused in this case and move a remand application for transferring the custody of the accused from J.C. To P.C. In view of the above averments, I am not inclined to accept the application of the accused under Section 438 Cr.P.C. Hence it is rejected. Sd/- R.S Rathore Special Judge (PCA), Jaipur (ii) Thereafter, the accused moved another application on 05.07.2004 under Section 167 Cr.P.C. to the effect that on 10.06.2004, he was arrested in second FIR and during custody in second FIR, he was interrogated in first FIR also but no formal arrest memo was prepared in first FIR. He contended that the said interrogation was custodial interrogation and his custody in second FIR No.110/04 was also deemed custody in first FIR No.109/04. He further submitted that a remand for police custody was given only in second FIR for five days on 11.6.2004 and again further remand was given in second FIR, therefore, his continued detention beyond 24 hours, without proper remand, in first FIR (in which he was not arrested) be treated as illegal and he should be set free on suitable bail bonds. The prosecution opposed the said application of the accused under Section 167 Cr.P.C. The Special Judge, after hearing the arguments, vide order dated 7.7.2004, rejected the application of accused moved under Section 167 Cr.P.C. in first FIR. The operative portion of the order is reproduced as under :- “After hearing the above arguments and the inferences drawn from them, as enumerated above, I am in agreement with the correct position of law laid down by the learned counsel for the accused. However, the Court cannot become immune to the gravity of the offence and the fact that the lapses/inadvertence of the Investigating Agency should not, in any manner, thwart the fair and proper investigation of the case of corruption of such magnitude. This again would be sabotaging the investigation in its infantile stage and would certainly not serve the larger public interest which, in my humble view, the Court should perceive and be sensitive about it. Therefore, the application of the accused is not accepted.” It is relevant to mention that the above order was not challenged by accused. (iii) Subsequently, the accused moved another application under Section 167 Cr.P.C., on 10 th August, 2004, at 4 p.m. in the first FIR to the effect that he was arrested on 10th June 2004 in second FIR and his custody was a deemed custody in the first FIR also and a period of sixty days has passed from 10th June 2004 and no charge- sheet has been filed in first FIR, therefore, he should be granted bail in terms of Section 167 Cr.P.C. The Special P.P. Filed reply to the above application and made a request in writing that the accused has not been taken into custody in first FIR. The accused remained most of the time sick and hospitalized during the custody and investigation in second FIR, therefore, he could not be arrested in first FIR. It was also mentioned that application has been filed at 4.30 p.m., and it was not possible to call Investigating Officer as well as the case diary, therefore, in the interest of justice, a reasonable time should be granted to call the I.O., case diary and for arguments. A copy of this reply was delivered to the learned counsel for the accused after taking his receipt on 10.08.2004 at 5.15 p.m., certified copy of which has been placed on record as Annex.8. The Special Judge did not grant time to prosecution to call I.O., police diary or for arguments and allowed application under Section 167 (2) Cr.P.C., filed on behalf of accused in first FIR No.109/04 on the same day and released the main accused on bail in first FIR deeming his custody in this FIR also. (iv) The aforesaid order dated 10th August 2004 has been impugned by the State of Rajasthan in S.B. Criminal Misc. Cancellation of Bail Application NO.3980/2004. 4. Facts relating to co-accused Ajay Data. (i) So far as co-accused Mr. Ajay Data is concerned, he was an accused in first FIR. His house No. D-47, Hanuman Nagar, Jaipur was searched by a team of Anti Corruption Bureau. However, he remained absconded and was not available. On 20th July, 2004, he moved an application for anticipatory bail under Section 438 Cr.P.C., in the Court of Special Judge, who vide his order dated 30.07.2004, rejected the application but in the same order, he granted interim bail to co-accused with certain conditions. (ii) On 3rd August 2004, the Investigating Officer, moved an application before the Special Judge stating that co-accused had not appeared before him as directed regularly and further that as and when he appeared he avoided interrogation alleging physical and mental agony. He did not cooperate with the investigation. Therefore, it was prayed that interim bail granted to co-accused Ajay Data be cancelled. The Special Judge dismissed the application on 3rd August 2004 itself. (iii) Subsequently, on 11.08.2004, the co-accused Ajay Data surrendered himself before the Special Judge along with application under Section 437 Cr.P.C. The Special Judge allowed the same on the same day and released him on bail. The State has challenged all the three orders dated 30.7.2004, 3.8.2004 and 11.8.2004 in S.B. Criminal Misc. Cancellation of Bail Application NO.3844/2004. 5. The learned Additional Advocate General and the learned counsels for both the accused persons have argued the case at length. They have also cited number of judgments in support of their contentions. In the present case, an important question of law has arisen as to whether the arrest of main accused Mr. Srivastava in second FIR, can be treated as deemed custody in first FIR also and on failure of filing charge-sheet in first FIR within stipulated period from the date of so called deemed custody, is the accused entitled to be released on bail under proviso (a) of sub-section (2) of Section 167 Cr.P.C.? 6. The Additional Advocate General has contended that in the case of accused Ravi Shanker Srivastava, the Special Judge has wrongly relied upon the judgment of the Division Bench of this Court in the case of Jawahar Singh Vs. State (1990 Cr.L.R. (RAJ) 95) to the effect that if an accused is available in one case then his custody will be deemed to have been treated in second case also from the date of custody in one case. He submits that aforesaid view of the Division Bench is contrary to the law laid down by the Hon'ble Supreme Court in CBI Vs. Anupam J. Kulkarni (AIR 1992 SC 1768), wherein the Hon'ble Supreme Court has specifically laid down that if an accused is in judicial custody in connection with one case and to enable the police to complete their investigation of the other case, they can require his detention in police custody for the purpose of associating him with the investigation of the other case. In such a situation, he must be formally arrested in connection with other case and then obtain the order of the magistrate for detention in police custody. He further contended that the Division Bench of this Court in State Vs. Sukh Singh (AIR 1954 Raj. 290) had already laid down the principle that an accused could be taken into police custody in another case while in judicial custody in first case. He submits that a Division Bench of this Court in Jawahar Singh's case (supra) did not consider the principles laid down by earlier Division Bench judgment of this Court itself in State Vs. Sukh Singh (supra). However, he submits that in view of the judgment of Hon'ble Supreme Court in the case of C.B.I. Vs. Anupam J. Kulkarni (supra), the ratio laid down by the Division Bench of this Court in Jawahar Singh's case is not binding and the same is impliedly over-ruled. He has also referred the recent Full Bench decision of this Court in the case of State of Rajasthan Vs. Santosh Yadav (2002 (2) WLC (RAJ) 1), wherein it has been held that police can seek permission to remove an accused from judicial custody to police custody for completion of investigation in another case. Therefore, he submits that without formal arrest of an accused, there cannot be deemed custody of an accused in another case. He further contended that the Special Judge himself rejected the bail application of the accused under Section 438 Cr.P.C., vide order dated 25.06.2004, therefore, the accused had knowledge that he had not been arrested in first FIR; that the Special Judge rejected the first application of the accused filed under Section 167 Cr.P.C., after considering the judgment of Division Bench in the case of Jawahar Singh Vs. State of Rajasthan (1990 Cr.L.R.) (RAJ) 95), vide detailed order dated 7.7.2004 which was not challenged by accused. Thereafter, there was no occasion or change of circumstances to allow second application under Section 167 CR.P.C., filed by the accused, by the Special Judge on 10.8.2004. He contended that passing of impugned order dated 10.8.2004 amounts to review, by Special Judge, to his own orders dated 25.6.2004 rejecting the application for anticipatory bail and second order dated 7.7.2004 rejecting application of the accused under Section 167 Cr.P.C. He submits that Section 362 Cr.P.C., completely bars review of an order by any criminal Court. He has placed reliance on the following judgments of the Hon'ble Supreme Court in this regard :- (a) (2001) 1 SCC 169, Hari Singh Mann Vs. Har Bhajan Subgg Bajwa; (b) J T 2004 (7) SC 243, Adalat Prasad Vs. Rooplal Jindal and others; and (c) (2001) 4 SCC 752, State of Kerala Vs. M.M. Manikantan Nair. He further submits that in the present case, the Special Judge has exercised his discretion on the basis of irrelevant and extraneous grounds and has wrongly granted bail under Section 167 (2) CR.P.C., by holding deemed custody of the accused in first FIR. This order has occasioned miscarriage of justice and has been passed ignoring relevant provisions of law as well as material evidence on record. He submits that impugned order is absolutely incorrect and contrary to the provisions of law as well as to the judgment of the Hon'ble Supreme Court in the case of CBI Vs. Anupam J. Kulkarni (supra) and in such circumstances, the incorrect passed by the Special Judge should be corrected by this Court while exercising powers under Section 439 (2) Cr.P.C. He further contends that the impugned order is based on extraneous consideration for the reason that on 10th August 2004, second application under Section 167 (2) Cr.P.C., was moved at 4.30 p.m., just half an hour before the Court's time and at 5.15 p.m., the public prosecutor made a request in writing that it is not possible to call the case diary and the I.O., and he should be given time for calling the case diary as well as the I.O., and also for arguments as point involved in the present case is legal. However, no time was granted and on the same day, i.e., 10th August, 2004 itself, after court hours, the Special Judge passed a detailed order and allowed bail to accused Ravi Shanker Srivastava under Section 167 (2) CR.P.C. It has further been contended that even in custody of accused in second case, in most of the period, he either remained sick or hospitalized, therefore, investigation could not be completed and as such he could not be arrested in another case. In support of his contention, learned AAG has placed reliance on the following judgments :- (a) (2001) 6 SCC 338, Pooran Vs. Ram Bilas and another; (b) (1985) 2 SCC 597, Pokar Ram Vs. State of Rajasthan; (c)(2003) 3 SCC 183, Ghanchi Rubinassalim Bhaj vs. Metubha Diwan Singh Solanki; (d) (2001) 4 SCC 224; State of Maharashtra Vs. Rinesh; (e) (1998) 1 SCC 52, Dukhishyam Benepani, Astt. Director, Enforcement Directorate (FERA) Vs. Arun Kumar Bajoria; and (f) (2003) 1 SCC 15, Ram Pratap Yadav Vs. Mitrasen Yadav and another. 7. With regard to co-accused Ajay Data, learned AAG contended that while rejecting the anticipatory bail application filed by co-accused, vide order dated 30.07.2004, the Special Judge committed an error in granting interim bail to the accused by the same order date 30.7.2004, therefore, impugned order dated 30.7.2004 is contradictory and illegal. He further contends that when the co-accused did not comply with the terms and conditions of interim bail dated 30.7.2004, then an application was moved on 3.8.2004 by the I.O., regarding non-cooperative attitude on the part of the co-accused. The Special Judge, instead of vacating the order granting interim bail, passed more favorable order by putting more favorable conditions in favour of the co-accused as mentioned in the order dated 3.8.2004. He next contended that the Special Judge has committed an illegality in allowing the application under Section 437 Cr.P.C., as co-accused was neither taken into police custody nor in judicial custody. He further submits that even if he was presumed to have been taken into judicial custody, then without any recovery and interrogation from him, it was not proper to allow the co-accused on bail under Section 437 Cr.P.C., an order for remand of police custody ought to have been passed. In support of his contention, learned AAG has placed reliance on the following judgments:_ (a) JT 2004 (7) SC 161, Nirmal Jeet Kaur Vs. State of M.P. And another; (b) AIR 2005 SC 498, Sunita Devi Vs. State of Bihar; (c) (1997) 7 SCC 187, State Vs. Anil Sharma; and (d) 2001 (2) Crimes (SC) 239, Muraleedharan Vs. State of Kerela. 8. The learned counsels for the accused-non- applicants have vehemently opposed the applications under Section 439 (2) Cr.P.C. 9. Mr. S.S. Hora, learned counsel for the main accused R.S. Srivastava contended that the order granting bail is based on the judgment of Division Bench of this Court in the case of Jawahar Singh (Supra). Therefore, there is no illegality in the order passed by the Special Judge granting bail to the accused R.S. Srivastava under Section 167 (1) and (2) CR.P.C., deeming custody of the accused in first FIR also w.e.f., 10.6.2004. A person is arrested as per Section 46 Cr.P.C. He submits that no formal order is required for arrest of accused and in case no arrest memo is prepared then still implied arrest of the accused was in accordance with Section 46 Cr.P.C. He has also referred Sections 41, 57 and 167 Cr.P.C. The accused was interrogated in first FIR also while in custody in second FIR. Therefore, that interrogation should be treated as custodial interrogation and his arrest in second FIR should be treated as deemed arrest in first FIR also. So far as the moving of application under Section 438 Cr.P.C., by accused in first FIR on 22.6.2004 is concerned, he submits that it was moved on wrong advice, otherwise there was no need to move such application in view of judgment of Division Bench of this Court in the case of Jawahar Singh (supra). He also submitted that the same mistake was committed by the Special Judge while rejecting the first application of the accused under Section 167 (1) Cr.P.C., vide order dated 7.7.2004. So far as moving of second application under Section 167 Cr.P.C., on 10.08.2004 at 4.30 p.m., is concerned, he submits that he was granted bail in second FIR on 10.8.2004 and in case he would not have moved the said application, then there were chances that the accused could have been arrested in first FIR. He submits that as per the judgment rendered in the case of Jawahar Singh (supra), the accused was in deemed custody, therefore, the provisions of Section 167 (2) Cr.P.C., were fully applicable in the present case also and there is nothing wrong on the part of the Special Judge in passing the impugned order dated 10.8.2004. He also contended that Anti Corruption Bureau itself has issued a circular dated 17.12.1996 to the effect that normally an accused should not be arrested. He has referred the following judgments in support of his contentions:- (a) (1999) 3 SCC 715, Manoj Vs. State of M.P.; (b) AIR 1993 SC 1, Aslam Babalal Desai Vs. State of Maharashtra; (c ) AIR 1980 SC 785, Niranjan Singh and another Vs. Prabhakar Rajaram; d) 1990 Cr.L.R. (Raj.) Jawahar Singh Vs. State; (e) 1983 CR.L.J., 1748, Jagannathan and others Vs. the State; (f) 1996 Cr.L.J. 2600 Mrs. Iqbal Kaur Kwatra Vs. The Director General of Police, Rajasthan State, Jaipur and others. (g) AIR 1977 SC 1096, Govt., of Andhra Pradesh and another Vs. Anne Venkateshwara Rao etc., (h) 1992 CR.L.J. 1173, Kultej Singh Vs. Circle Inspector of Police and others. (i) AIR 1980 SC 1632, Gurbaksh Singh and another Vs. the State of Punjab; and (j) 1991 (1) Kar.L.J., 494,Ramu Vs. State of Karnataka. 10. Mr. A.K. Gupta, counsel for the accused non- applicant Ajay Data has contended that this is an application for cancellation of bail order already passed by the Special Judge and factors for granting bail and for cancellation of bail already granted are altogether different. This application under Section 439 (2) Cr.P.C., should not be heard as an appeal or revision. He further contended that co-accused similarly situated, namely, Lalit Goyal, Girish Goyal, Suresh Bansal and Ram Niwas Lawania have already been granted bail. So far as Suresh Bansal and Ram Niwas Lawania are concerned, they preferred writ petition before this Court to quash the FIR. But while, rejecting their writ petition, this Court converted the warrant of arrest into bailable warrant. Therefore, he submits that the bail of co-accused granted under Section 437 Cr.P.C., should not be cancelled. He also contended that from the bare reading of FIR, it is clear that Ajay Data has been made as an accused with the aid of Section 120-B IPC whereas from the contents of FIR, no prima facie case is made out against him for the offence under Section 120-B IPC. The ACB has brought in three telephone transcripts pertaining to the alleged conversation between Ajay Data and suspected officer. However, he submits that tapping of telephone is illegal in view of Section 5 (2) of the Indian Telegraph Act. In support of his contention, he has referred the judgment reported in (1997) 1 SCC 301, People's Union for Civil Liberties (PUCL) Vs. Union of India and anr. It is