DUKHISHYAM BENUPANI, ASSTT.

DIRECTOR, ENFORCEMENT DIRECTORATE (FERA)

ARUN KUMAR BAJORIA

NOVEMBER 28, 1997

[M.K. MUKHERJEE AND K.T. THOMAS, JJ.]

Criminal Procedure Code, 1973-Section 438-Anticipatory Bai/- Grant of-Consideration for Court-FERA violations-Order injuncting C Directorate from arresting respondent-Time and place for carrying out investigations also fixed by High Court-Whether High Court was justified in interfering with functions of statutory authorities-Held, No-Such type of interference would impede even course of enquiry or investigation into serious allegation pendings-It is not the function of court to monitor D investigation process so long as such investigation does not transgress any provision of law-It must be left to investigating agency to decide venue, timings and question and manner of putting such question to persons involved-A blanket order fully insulating a person from arrest, held wyustified-Argument that respondent is a sick person, held not enough to claim pre arrest bail.

In a raid conducted in the residential premises of the respondent, the officials of the Enforcement Directorate issued summons to the respondent under Section 40 of the foreign Exchange Regulation Act to interrogate the respondent in connection with recovery of certain documents and other materials in the raid. The respondent filed a writ petition challenging the summons and praying for interim orders restraining the officials from proceeding with the summons. The respondent also filed an application for an order u/S 438 of the Code of Criminal Procedure. The Sessions Court granted ad interim bail order in favour of the respondent with a condition that he should report to the office of the Directorate on every Monday. The G Enforcement Directorate challenged the order and filed application for cancellation of the bail order. However the Division Bench dismissed the application while directing the department to interrogate the accused but not to put the accused on arrest till the applications pending disposal were decided. The department filed special leave petition alleging that the pre arrest bail order passed by the Sessions Court and the subsequent order H 566

DUKHlSHY AM BENUPA TI ASSTT. DIRECTOR v. A.K. BA.IORIA 567

passed by the High Court would very badly affect the effectiveness and utility A of the inquiry which the Directorate had to conduct into the serious allegations of FERA violations cases against the respondent; that respondent was successfully eluding from grilling interrogatories by adopting dilatory and contumacious tactics and that the respondent had suppressed the fact of his arrest earlier in a serious case of FERA violation involving a whopping sum B of 37 crores of rupees and that he was continuing on bail.

The respondent submitted that he presented himself for being interrogated on many days subsequent to the High Court order and nothing incriminatory was elicited from him so far and that the respondent was a sick person entitled to a pre arrest bail order.

Allowing the appeal, the Court

HELD: 1.1. In the instant case while sustaining the order granting

pre arrest bail to the respondent in FERA violation case, the officials of the Directorate are injuncted by the Division Bench of the High Court from arresting the respondent and the time and place for carrying out the D interrogations were also fixed by the Division Bench. Such kind of supervision on the enquiry or investigation under a statute is uncalled for. Such type of interference would impede the even course of enquiry or investigation into the serious allegations now pending. For what purpose the Division Bench made such interference with the functions of the statutory authorities, which E they are bound to exercise under law, is not discernible from the order under challenge. It is not the function of the court to monitor investigation processes so long as such investigation does not transgress any provision of law. It must be left to the investigating agency to decide the venue, the timings and the question and the manner of putting such question to persons involved in such offences. A blanket order fully insulating a person from arrest would F make his interrogation a mere ritual. Considerations to be weighed with the court while dealing with a prayer for pre-arrest bail order are materially different from a post-arrest bail application. The claim of the respondent that he made himself available for interrogation for several days after being armed with an order preventing his arrest is not of much relevance now G because that is not an aspect which can be taken advantage of by the respondent in this case. Similarly, the contention that respondent is a sick person is not enough to claim pre-arrest bail order. 1570-H; 571-A-E)

1.2. The City Sessions Judge while granting the pre arrest bail .ignored the fact that the High Court has repeatedly refused to grant any relief to the H

A respondent in spite of different motions made by him regarding the very accusation against him. Appellant has a case that respondent had suppressed those facts in the application filed before the City Sessions Court for anticipatory bail. An endeavour has been made before this Court by the respondent to show that in fact he had mentioned about it in the application B for anticipatory bail, though by some lapse it did not find a place in the copy of the application furnished to the opposite party. Even if there was no sinister motive for the respondent to keep such facts out of the said copy what this Court now concerned about is that the City Sessions Judge has not considered those facts at all. [571-G-Hl

C 1.3. The Division Bench of the High Court has gone ostensibly wrong in passing the impugned order. Any further loss of time would further impair the effectiveness of the inquiry and/or investigation into those allegations. Considering the nature and seriousness of the allegations as well as largness of the amount involved the order granted by the City Sessions Judge is quashed while exercising the residual powers of this D Court to deal with the said order also. [572-A-Bl

State rep. by the CBI v. Ani/ Sharma, JT (1987) 7 661; Pokar Ram v.

State of Rajasthan & Ors., AIR (1985) SC 969 and The State of Andhra

Pradesh v. Bimal Krishna Kundu & Anr., JT (1997) 8 382, relied on.

E CRIMINAL APPEL LA TE JURISDICTION: Criminal Appal No.

1116ofl997.

From the Judgment and Order dated 20.6.97 of the Calcutta High Court in C.R.M. No. I 078 of 1997.

S.B. Wad, D. Roy Chowdhary, (Wasim A. Qadri) and V.K. Venna for the Appellant

R.K: Jain, Utpal Mazumdar, Tripurari Ray, Ms. Sarla Chandra, P. Ghose and Dr. Laxmi Shastri for the Respondent.

The Judgment of the Court was delivered by

THOMAS, J. Leave granted.

When the Enforcement Directorate (under Foreign Exchange Regulation Act, for short 'FERA') moved the High Court of Calcutta challenging an order passed by a sessions judge granting anticipatory bail to the respondent, a H Division Bench of the High Court made the position worse for the Enforcement

...

DUKHISHYAM IJENUPATI ASSTT. DIRECTOR 1. A.K. BAJORIA [THOMAS. J J 569

" Directorate (for short the Directorate). It necessitated the Directorate to move A this .court with the special leave petition.

The officials of the Directorate wanted to interrogate the respondent in connection with recovery of certain documents and other materials in a raid conducted in the residential premises of the respondent. So they issued B summons to the respondent under Section 40 of FERA to appear before the officials at New Delhi. But the respondent, instead of appearing in response to the summons, approached the High Court with a writ petition challenging the summons and praying for interim orders restraining the officials fr9m proceeding with the sum11Jons. A single judge of the High Court however, refused to grant any interim relief despite repeated motions made by the C respondent for that purpose. While the said writ petition was pending the respondent filed an application in the City Sessions Court Calcutta for an order under Section 43S of the Code of Criminal Procedure (for short the Code). The City Sessions Judge granted ad-interim bail order on 19-3-1997 in favour of the respondent with a condition that he should report to the office of the Directorate at Calcutta on every Monday. Appellant challenged the D said order before the High Court in revision and a single judge of the High Court disposed of the revision directing the City Sessions Court to hear both parties and to take a final decision on merits. The City Sessions Judge thereupon heard the parties and passed final order on 25-4-1997 in favour of the respondent. The aggrieved appellant moved the Calcutta High Court E under Section 439(2) of the Code for cancellation of the said bail order. A Division Bench of the High Court (R. Bhattacharyya and M.A. Chowdhury.

JJ) has passed the impugned order on 20-6-1997 the operative part of which reads thus:

"Persuaded by the aforesaid circumstances, we direct the department F to interrogate the accused at the Calcutta office, SA Lindsay Street, 2nd Floor Calcutta-700 OS7 available from the summons. (No.T3/CP/

179/ Cal/97/MLA/4S52 dated 13.6.97) issued by the Enforcement Directorate But the petitioner must not be put on arrest till the applications pending disposal are decided. The petitioner is to attend G on Monday. Tuesday, Wednesday, Thursday and Friday i.e. on 23rd June 1997 to 27th June 1997 at SA Lindsay street and shall report to , Shri M.L. Acharya ChiefEnforcement Officer at 2 0 clock on the aforesaid dates. The interrogation is to con.tinue until 5 O'clock for each day. The prayer for further interrogation is left open which will be considered on hearing the parties Hearing to continue as before." H

A Despite several postings thereafter and repeated requests made by the appellant for modification of the said order the Division Bench did not do anything in the matter and hence the appellant approached this court.

According to the appellant the pre-arrest bail order passed by the Sessions Court and the subsequent order passed by the High Court would B very badly affect the effectiveness and utility of the inquiry which the Directorate has to conduct as enjoined by the statutory provisions into the serious allegations of FERA violations glaringly observed against the respondent. Learned counsel produced the files concerning the FERA violation cases against the respondent in which the magnitude of the amount involved C is indicated. Appellant pointed out that the City Sessions Judge as well as the Division Bench of the High Court have not given any consideration to certain serious aspects involved. One such aspect is that this respondent was caught earlier in a serious case of FERA violation involving a whopping sum of 37 crores of rupees and he was arrested in connection with that case on 16-3-1990 and he is continuing on bail. A complaint was filed against him on D 2-9-1994 before the Chief Metropolitan Magistrate, Calcutta for offence under

Section 96 of FERA and the case is still pending. Another aspect is, the High Court of Calcutta had earlier refused to stop proceedings against the respondent in the present case in spite of repeated motions made by him in that hehalf.

The next is that when the respondent failed to get any relief from the High E Court he adopted an alternative strategy by filing yet another writ petition challenging the constitutional validity of the provisions of FERA and in that writ petition he again moved for interim reliefs but a single judge of the High Court after hearing the respondent declined to grant any relief to him. Yet another fact pointed out is that respondent was successfully eluding from grilling interrogatories by adopting dilatory and contumacious tactics.

F Learned counsel for respondent defended both orders on the premises that the respondent presented himself for being interrogated on many days subsequent to the High Court order and nothing incriminating was elicited from him so far and that the respondent is a sick person entitled to a pre-arrest G bail order.

It seems rather unusual that when the aggrieved party approached the High Court challenging the order passed by a subordinate court the High Court made the position worse for the aggrieved party. The officials of the Directorate are now injuncted by the Division Bench from arresting the H respondent and the time and places for carrying out the interrogations were

DUKHISHYAM BENUPATI ASSTT. DIRECTOR v. A.K. BAJORIA [THOMAS, J.] 571

also fixed by the Division Bench. Such kind of supervision on the enquiry A or investigation under a statute is uncalled for. We have no doubt that such type of interference would impede the even course of enquiry or investigation into the serious allegations now pending. For what purpose the Division Bench made such interference with the functions of the statutory authorities, which they are bound to exercise under law, is not discernible from the order B under challenge. It is not the function of the court to monitor investigation processes so long as such investigation does not transgress any provision of Jaw. It must be left to the investigating agency to decide the venue, the timings and the questions and the manner of putting such questions to persons involved in such offences A blanket order fully insulating a person from arrest would make his interrogation a mere ritual [ vide State rep by the C CBI v. Anil Sharma, JT (1997) 7 651].

This court has pointed out time and again that considerations to be weighed with the court while dealing with a prayer for pre-arrest bail order are materially different from a post-arrest bail application. [vide Pokar Ram

v. State of Rajasthan & ors., AIR (1985) SC 969, State rep by the CBI v. Anil D Sharma, JT (1997) 7 651 and The State of Andhra Pradesh v. Bimal Krishna Kundu & Anr., JT (1997) 8 382.

The argument of the learned counsel for the respondent that he made himself available for interrogation for several days after being armed with an order preventing his arrest is not much relevance now because that is not an E aspect which can be taken" advantage of by the. respondent in this case. • Similarly the contention that respondent is a sick person is not enough to claim pre-arrest bail order. Hence we are not inclined to go into the dispute whether respondent is suffering from any such health condition.

That apart how could the City Sessions Judge have ignored the fact F that the High Court of Calcutta has repeatedly refused to grant any relief to the respondent in spite of different motions made by him regarding the very accusation against him. Of course appellant has a contention that respondent has suppressed those facts in the application filed before the City Sessions Court for anticipatory bail. An endeavour has been made before us by the G respondent to show that in fact he had mentioned about it in the application for anticipatory bail though by some lapse it did not find a place in the copy of the application furnished to the opposite party. Even if we assume that there was no sinister motive for the respondent to keep such facts out of the said copy what we are now concerned about is that the City Sessions Judge has not considered those facts at all.

A We have no doubt that the Division Bench of the High Court has gone ostensibly wrong in passing the impugned order. When we perused the files concerning the allegations against the respondent (which the Directorate had made available to us) we strongly feel that any further loss of time would further impair the effectiveness of the inquiry and/or investigation into those B allgatiohs. Considering the nature and seriousness of the allegations as well as largness of the amount involved we have no doubt that the order granted by the City Sessions judge should not remain alive. We are, therefore, constrained to stretch the arms of the residual powers of this court to deal with the said order also.

C In the result we set aside the impugned order passed by the Division Bench of the Calcutta High Court and we also annul the pre-arrest bail order dated 25-4-1997 passed by the City Sessions judge. The petition filed by the - appellant before the Calcutta High Court for cancellation of the bail order will stand disposed of in the above terms. Appeal is accordingly allowed.

D R.A Appeal allowed.