CR.RA/35920/2008 1/12 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION No. 359 of 2008 To CRIMINAL REVISION APPLICATION No. 364 of 2008 With CRIMINAL REVISION APPLICATION No. 366 of 2008 With CRIMINAL REVISION APPLICATION No. 368 of 2008 With SPECIAL CRIMINAL APPLICATION No. 2208 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE D.H.WAGHELA Sd/- ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? 1 & 2 YES; 3 to 5 NO ========================================================= STATE OF GUJARAT - Applicant(s) Versus GIJUBHAI MOTIBHAI PATEL - Respondent(s) ========================================================= Appearance : MR RC KODEKAR ADDL PUBLIC PROSECUTOR for Applicant(s) : 1, MR PRADEEP PATEL with MR PINAKIN M RAVAL for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE D.H.WAGHELA Date : 11/12/2008 CR.RA/35920/2008 2/12 JUDGMENT CAV JUDGMENT 1. The parties being same and the matters having arisen from same criminal litigation, all the matters were heard together by consent and are disposed by this common judgment. Special Criminal Application No.2208 of 2007 is filed by the accused person with the prayer to quash the complaint bearing C.R.No.114 of 2006 along with C.R.Nos.6 to 15 of 2007 registered with Modasa Town Police Station for the offences punishable under sections 465, 468, 471 of Indian Penal Code, 1860 ( "IPC" for short) and section 13 (1) (g) of the Prevention of Corruption Act, 1988 ("PC Act" for short), as far as the petitioner is concerned. 2. It is the case of the petitioner that he is serving as Inspector of Motor Vehicle, Modasa under the control of Regional Transport Officer. His duty was to inspect vehicles for registration after application in the prescribed form was examined by clerk and taxes and registration fees were accepted by the cashier. Admittedly, some forged sale letters of Tata Motors had been produced for registration of vehicles and he had informed the Regional Transport Officer in that regard. When, as custodian of the record of registration, he checked up registration of vehicles in the last ten years, he found such forged and bogus sale letters pursuant to which ten complaints were filed and registered and his name was not mentioned in the complaint, but an agent was alleged to have forged such documents in collusion with owners of the vehicles. However, upon an affidavit being filed by the agent, the allegations against the petitioner and two other clerks were made to implicate him in the criminal case. CR.RA/35920/2008 3/12 JUDGMENT 3. Since the petitioner's name is not even mentioned in the F.I.R., which is sought to be quashed, and the investigation is admittedly not completed, the prayer of the petitioner to quash the complaint is ex facie misconceived and untenable. As observed by the Supreme Court in Mohmad Malek Mondal v. Pranjal Bardalai [(2005) 10 SCC 608], the contention that there was no material against the petitioner since the only material on record was inadmissible retracted statement allegedly made by the co-accused, could not be accepted at the stage when only cognizance was taken and the petitioner was yet to be interrogated. As can be seen from the other surrounding facts discussed hereinbelow in relation to the criminal revision applications of the State praying, in effect, for remanding the petitioner to police custody, the petition cannot be allowed and hence it is dismissed in limine. 4. Criminal Revision Applications No.359 to 364, 366 and 368 of 2008 are filed by the State to challenge the order dated 17.3.2008 of learned Special Judge, Sabarkantha at Himatnagar in Criminal Misc. Application No.144 of 2008 whereby the application for remanding the respondent (the petitioner in the above matter) to police custody has been rejected. 5. The original complaints are registered as C.R.Nos.6/07, 7/07, 8/07, 9/07, 10/07, 11/07, 12/07 and 14/07 against one Usmangani Rahemanbhai Ghanchi for the offences punishable under sections 465, 467, 468, 471 of IPC. The offending acts, in substance, are forging of documents and using them for registering vehicles; and during the course of investigation, the accused-respondent appears to have CR.RA/35920/2008 4/12 JUDGMENT emerged as one of the persons involved in commission of the alleged offences. The respondent is named as recipient of amounts of bribe paid through an agent who has made statement before the police and, in order to gather all the material and evidence regarding commission of the alleged offences, the respodnent is stated to have been required for custodial interrogation and the application therefor is rejected mainly on the grounds that the petitioner has co-operated in the investigation, the police has relied upon contradictory statement of the agent and the application is made after 15 days of arrest of the petitioner. There is no dispute about the fact that, earlier, learned Judicial Magistrate, First Class, Modasa had, by order dated 08.01.2008, granted police remand for two days and that order was set aside by this Court in Special Criminal Application No.63 of 2008 only on the ground that only Special Judge, Modasa had jurisdiction to deal with the case under the PC Act. Liberty was, however, reserved for the investigating officer to make a fresh application seeking remand before the competent court. Subsequent to that, the petitioner was granted anticipatory bail by the order dated 01.11.2007 in Criminal Misc. Applications No.10441 to 10451 of 2007, with the express condition that it would be open for the investigating officer to file application for remand. There was also no dispute about the fact that the respondent had, pursuant to the aforesaid orders, not been subjected to any custodial interrogation and investigation was incomplete. In these facts, it was fairly conceded by learned counsel for the respondent that the ground of limitation of 15 days did not apply and it could not be pressed or argued for rejection of the prayer for custodial interrogation. CR.RA/35920/2008 5/12 JUDGMENT 6. It was argued by learned A.P.P. for the petitioner- State, in the revision applications, that investigation had, prima facie, unearthed a systematic activity of registration of damaged vehicles on the basis of forged documents and besides commission of several serious offences, the state exchequer has suffered huge losses. It was further submitted that the alleged offences could not have been committed and could not have remained unnoticed for several years without complicity of several persons and use of sophisticated equipments for preparing and forging documents. Therefore, a proper and comprehensive investigation was required to be conducted and only custodial interrogation of the respondent would throw light on several important aspects of the alleged offences. He relied upon the observations, as under, in the judgment of the Supreme Court in State represented by the C.B.I. v. Anil Sharma [(1997) 7 SCC 187] : "6. ......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." 7. It was argued by learned counsel Mr.Pradeep Patel, appearing for the respondent, that the respondent has, all throughout, co-operated in the investigation and there was not CR.RA/35920/2008 6/12 JUDGMENT even prima facie evidence of the respondent having received or demanded bribe or of having forged any documents. He submitted that belated application for remand was made only on the basis of the statement of a co-accused person and the respondent was even at present ready to be interrogated without being taken into police custody. He also submitted that the RTO agent has already admitted in his statement that the documents were produced on his own computer and that computer is seized by the police. He submitted that police custody cannot be sought for recovering money which is alleged to have been received by the respondent several years ago and, in short, no reasonable ground was made out for custodial interrogation. It is not the case of the petitioner that further investigation is impossible without the respondent being in police custody. It was further submitted that earlier the investigating officer himself had made a report that the respondent was co-operating in the investigation. 8. Following judgments, for the observations, as under made therein, were discussed at the bar: (i) State of Gujarat v. Swami Amar Jyoti Shyam [1989 (1) GLR 217]: "17. .....When the need for remand to police custody is made out, the Court should not (sic) grant such remand and should facilitate proper and complete investigation. But it cannot be said that an order of remand to police custody is to be granted as a matter of course. Section 167 (3) makes it clear that Magistrate has to record reasons for granting remand to police custody. It does not expressly provide that for refusing such custody, reasons shall be recorded. This is an indication that though investigation agency is to investigate into cognizable offence without any interference from judiciary, it does not mean that whenever request for police remand is made, it is to be granted. The police CR.RA/35920/2008 7/12 JUDGMENT has to make out a case that the custody of the accused with the police is necessary for further investigation." (ii) C.B.I. v. Anupam J. Kulkarni [AIR 1992 SC 1768]: "4. The Magistrate under S.167 (2) can authorize the detention of the accused in such custody as he thinks fit but it should not exceed fifteen days in the whole. Therefore, the custody initially should not exceed fifteen days in the whole. The custody can be police custody or judicial custody as the magistrate thinks fit. The words "such custody" and "for a term not exceeding fifteen days in whole" are very significant." (iii) Jairajsinh Temubha Jadeja v. State of Gujarat [2002 (1) GLR 215] : "8. .....Having heard the rival contentions and gone through the record, the question which is raised is whether in the facts and circumstances of the case, the accused are required to be delivered to the police custody i.e. on police remand. It may be noted herein that it is a clear case of prosecution that during the investigation it transpired that there were two assailants at the scene of offence and they were (i) Hanif and (2) Iqbal. One of them was identified by the victim through the photograph. It is not a case of the prosecution that any of the petitioners was present at the time when the incident occurred, but the present petitioners are being investigated by aid of Sec.120-B of the Indian Penal Code. This court, therefore, would be required to go into the principles that when the remand to the police custody can be ordered. The principle of granting or not granting remand is always depending upon the facts and circumstances of the case and collection of evidence by investigating agency. On that evidence, the investigating agency may ask for the remand of the accused persons for further investigation i.e. to say that the investigating agency has to make out a case that certain evidence is collected against the accused and without the custodial investigation, no further investigation is possible and if the remand is not granted, the investigation would be throttled. These are the ordinary principle of granting or not granting the remand and it depends upon the facts of each case to grant or not to grant the remand. After keeping in mind the legal principles established by the Court, it will be useful to refer to a decision of this Court on which reliance has been placed by both the side in the matter of Siyaram Gopichand Gupta & Ors. v. State of Gujarat, reported in 1990 (2) GLR 905 wherein after CR.RA/35920/2008 8/12 JUDGMENT referring many decisions of the Apex Court, this Court quoted in para 23 the words of Lewis Mayers as under: "To strike the balance between the needs of law enforcement on the one hand and the protection of the citizen from oppression and injustice at the hands of the law enforcement machinery on the other hand, is a perennial problem of statecraft." "9. .....It was observed by this Court in the above said decision that the Courts have to strike balance between the propositions above. Meaning thereby that Courts will have to see that is there a case made out by investigating agency to hand over the accused on remand or on the pretext of remand, the liberty of a citizen is likely to be affected. Therefore, the remand under section 167 (2) of Cr.P.C. is an exception and not the rule. The law does not fasten judicial duty on Magistrate to record reasons for not granting remand to the police custody. Sec.167 of Cr.P.C. makes it obligatory on police authority to transmit a copy of the entires in the diaries relating to case along with the forwarding of the accused. Passing of the mechanical orders of remand by the Magistrate has been deprecated by law, because sec. 167 (3) of the Code casts duty on the Magistrate to apply judicial mind to the issue. At this juncture, Magistrate is bound to satisfy himself firstly that the accusation is whether well founded. The Magistrate will have to satisfy himself that the presence of the accused in police custody is whether absolutely necessary. The Magistrate shall look into the evidence and material collected by the investigating agency and therefore it is imperative for the police officer to transmit case diary to the Magistrate. Remand to police custody should not be granted to collect the material and evidence, when there is no prima facie or at least sufficient material collected by the investigating officer. That is exactly making out a case by the investigating agency and at that crucial point of time the Magistrate must satisfy himself upon the material collected that without the policy custody, it would be impossible for police authorities to go further in the investigation and in those cases only remand to the police custody is justified by the law. "14. ....In the facts and circumstances of the case, irrespective of the involvement of the petitioners in the crime and the material collected by the police authorities, none of the grounds is sustainable to order remand in police custody. Remand cannot be granted to CR.RA/35920/2008 9/12 JUDGMENT obtain confessional statement, the remand cannot be granted to discover materials used by the other accused or for the arrest of the other accused. In this regard, the observation of the Apex Court in the matter of Smt.Nandini Satpathy v. P.L.Dani reported in AIR 1978 SC 1025 expresses in so many words that when remand contravenes Art. 20 (3) of the Constitution of India, remand cannot be granted. ..." (iv) Shashibala Sharma v. State of Gujarat [2004 (2) GLR 1393] : "7. ......The courts while dealing with the request to grant police remand in the cases of large financial scam and where public money is involved and the criminal is undisputedly a white-collar, then the principle propounded by the Court in other cases, i.e. the cases of the accused involved in the offence punishable under Sec.302 or other property offences like robbery, theft etc.. should not be applied mechanically. The ratio being well propounded shall have to be applied, but in the background of the facts of each case , so, I am not in agreement to the submission of Mr.Nanavati that in the present case the petitioner ought not to have been handed over to the police for custodial interrogation even for an hour. But there is no justification emerging from record as well as reasons assigned by learned Magistrate that this is a case wherein police remand of seven days is otherwise required to be granted. It is possible in such cases to grant remand for a very short period and to evaluate the situation in the progress of the investigation........" (v) Pravinbhai Purshottamdas Patel v. State of Gujarat [2005 (3) GLR 2462] : "8. The court is not satisfied with the allegations made by the Investigating Agency that the petitioners have not co-operated with the investigation because no specific document is shown to the Court that the petitioners were ever called after 22nd February , 2005 for interrogation. No copy of written intimation sent to the petitioners-accused has been shown to the Court........ 13 (ii) However, this is not a case wherein custodial remand could have been granted, and hence, this is a case of improper exercise of jurisdiction and the petitioners-accused should not be compelled to face the custodial interrogation merely because the Investigating Agency intends to either recover any property or CR.RA/35920/2008 10/12 JUDGMENT document by way of recovery or discovery." 9. In the facts of the present case, important details of the facts indicating commission of offences punishable under sections 465, 467, 468, 471 and 114 of IPC appear to have been already unearthed and further investigation has also caused addition of offence punishable under section 13 of the Prevention of Corruption Act. The acts constituting commission of various offencs are interconnected and several accused persons appeared to have joined hands in a systematic activity resulting into loss to the revenue and benefit for the owners of vehicles. The respondent herein, though claims to have himself supplied important information related to the offence, has never undergone custodial interrogation. One of the accused persons has already submitted an affidavit implicating the respondent and changed his stand. However, the material so collected by the investigating agency does suggest that money has changed hands on regular basis for registration of vehicles on the basis of forged documents and staff subordinate to the respondent is stated to have been involved. In short, the whole systematic scam requires thorough investigation, and proper and intensive interrogation of the respondent could throw light and help the police in unearthing necessary details of the acts of commission and omission by the respondent. 10. Under the above circumstances, Deputy Superintendent of Police, investigating the offences, appears to have made the application for remand specifically for investigating the angle of corruption and receipt of bribe, concoction of material and production of forged documents, the implements used for that purpose and for searching out CR.RA/35920/2008 11/12 JUDGMENT the then absconding staff working under the respondent. That application is dismissed by the impugned order only on the ground that the application was made after 15 days of the respondent being formally taken into custody and released on bail under the order of anticipatory bail. That ground is already waived and the absconding members of the staff are stated to have been subsequently caught. In these facts, the other reasons for which custodial interrogation is demanded survive and the investigation is stated to have been hampered on account of missing links. Even as one RTO agent is stated to have made inconsistent statements, the investigating agency obviously requires sufficient cogent material for filing charge- sheet against particular persons for particular offences before completing the investigation. In the overall facts and circumstances of the case, the application of the investigating officer appears to have made a reasonable prayer for remanding the petitioner to police custody, though remand for 15 days could not have been justified. The plea of the respondent that officially he had a very limited role to play in registration of vehicles in the RTO office could not be accepted at this stage without and before thorough investigation of the alleged offences in which he is alleged to have been fully involved. 11. In the facts and for the reasons discussed hereinabove, the orders dated 17.03.2008 impugned in Criminal Misc. Applications No.143, 144, 145, 146, 147, 148, 149 and 151 of 2008 are set aside and the original application seeking remand is partly allowed with the direction that the petitioner shall be taken into police custody for interrogation for a period, in all, of five days on or after 22.12.2008. CR.RA/35920/2008 12/12 JUDGMENT Accordingly, Criminal Revision Applications Nos.359 to 364 of 2008, No.366 and 368 of 2008 are partly allowed, Special Criminal Application No.2208 of 2007 is dismissed and Notice issued therein is discharged with no order as to costs. Sd/- ( D.H.Waghela, J.) Upon pronouncement of the above judgment, learned counsel Mr.Pinakin Raval requested for an order to stay operation of the order for a period four weeks. There being no justification for grant of the request, it is rejected. Sd/- ( D.H.Waghela, J.) (KMG Thilake)