The present petition has been filed by the Central Bureau of Investigation (CBI), the investigating agency, challenging the impugned order dated 6.6.2012 passed by the In-charge Special CBI Judge below the application for remand in Case No. RC-0292012A0011 dated 30.5.2012 for the offences under sec. 7 and 8 of the Prevention of Corruption Act, 1988 read with sec. 120B of the Indian Penal Code refusing remand of the accused Shri Avarjeet Singh.
2. The brief facts of the case as narrated are that a complaint was received by the CBI which has been registered and on the basis thereof the FIR was registered at Annexure-B for the alleged offences under sections 7 and 8 of the Prevention of Corruption Act, 1988. Respondent No.1-accused was arrested at Delhi on 31.5.2012 and thereafter he has been brought to CBI, Ahmedabad and was granted remand of 3 days. The petitioner-CBI has filed an application for further remand which has been refused and the present petition has been filed challenging the impugned order.
3. Learned counsel Mr. Y.N. Ravani for the petitioner-CBI has stated that respondent No. 1 accused is charged with the offence of corruption as the Dy. General Manager of SEBI. It is submitted that the CBI had requested for remand of respondent No.1-accused on the grounds stated in the application. However, the learned Judge has failed to appreciate and has refused the same which has caused prejudice to the petitioner investigating agency, CBI.
4. Learned counsel Mr. Ravani submitted that the learned Judge has erred in appreciating that the remand was sought for recovery of the mobile phone and he has proceeded on the assumption that the transcript regarding the conversation with other co-accused Shri Ashok Mehta could be obtained from the service provider and has therefore refused the remand/custodial interrogation. Learned counsel Mr. Ravani submitted that the mobile phone (handset) is said to have been thrown by respondent No.1-accused at Delhi which has to be recovered. He submitted that it has not been appreciated that the mobile phone may have further details which are required to be retracted like SMSs, phone details and also the memory stored which can give a clue for further investigation. Learned counsel Mr. Ravani has submitted that it would be necessary to have such mobile instrument to find out the modus operandi of respondent No.1-accused and the magnitude of the offence with the involvement of other persons. Therefore, learned counsel Mr. Ravani submitted that the mode of investigation cannot be decided and it cannot be presumed that the transcript of the conversation with the other co-accused would be sufficient.
5. Learned counsel Mr. Ravani has referred to and relied upon the judgment of the Hon'ble Apex Court in the case of State Rep. By the CB v. Anil Sharma, reported in (1997) 7 SCC 187, to emphasise that "custodial interrogation is qualitatively more elicitation oriented than questioning a suspect who is well ensconced with a favourabe order under Sec. 438 of the Code". He submitted that custodial interrogation would help in extracting information.
6. Learned counsel Mr. Ravani has also referred to and relied upon the judgment in the case of Gopalbhai Chaturbhai Amin v. Staste of Gujarat, reported in 2005 (4) GLR 3103. He has also referred to and relied upon the judgment reported in 1991 GLH 21. Further, he has pointedly referred to the judgment of this Court (Coram: Akil Kureshi, J.) in Special Criminal Application No. 1497 of 2010 dated 6.8.2010 and submitted that it has been granted when the facts or information which is exclusively within the knowledge of the accused is required to be elicited. Learned counsel Mr. Raval submitted that it would cause prejudice to the prosecution and, therefore, the present application may be allowed.
7. Learned counsel Mr. Ravani has also referred to and relied upon the judgment of the Division Bench of this Court in Criminal Reference No. 3 of 2009 in Special Criminal Application No. 1590 of 2009 and has relied upon the observations to emphasise that the order refusing to grant remand would have a bearing on the proceedings of the trial and it may affect the ultimate decision. He has further emphasised that if the investigating agency is deprived of having custodial interrogation of the accused for effective investigation, it will affect progress of the trial or decision.
8. Learned counsel Mr. JM Panchal for respondent No. 1-accused has submitted that the accused has been arrested on 31.5.2012 and transit remand was granted up to 3.6.2012. Thereafter, remand was granted up to 6.6.2012 by the court. Learned counsel Mr. Panchal therefore submitted that the contention that he has not been co-operative cannot be believed and the order passed by the in-charge CBI Judge cannot be said to be erroneous as he has given the reasons for not granting the remand. Learned counsel Mr. Panchal submitted that it is required to be mentioned that remand is sought for recovery of the mobile phone and not discovery. He emphasised that there is distinction between recovery and discovery of mobile phone. He emphasised and submitted that the CBI can obtain the conversation with other co-accused which has been recorded from the service provider and it will not have any bearing or it may not cause any prejudice to the prosecution case. Learned counsel Mr. Panchal submitted that the learned Judge has made a note of the fact that the mobile phone has been thrown at a public place and it may not be possible to trace it and therefore the remand has been refused.
9. Learned counsel Mr. Panchal submitted that the scope of the Special Criminal Application is also required to be considered when the court has passed the order with reasons after considering the case diary. He submitted that it cannot be said that there is any error, much less any jurisdictional error, committed by the court below. Therefore, it was submitted that there is no reason to exercise extra-ordinary jurisdiction under Arts. 226 and 227 of the Constitution of India.
10. Learned counsel Mr. Panchal has also submitted that it is a case of personal liberty and the court may be slow in granting any such application when already the remand has been granted. He emphasised and submitted that there is no justification for grant of additional remand and it is sought only on the ground that there might be or may be some conversation or SMS or other details recorded in the mobile phone which may be recovered. He again emphasised that it is not a discovery that the accused has concealed a weapon or incriminating material and for the purpose of recovery remand may not be granted.
11. Learned counsel Mr. Panchal submitted that the order of this Court in Special Criminal Application No. 1497 of 2010 referred to was in the facts and circumstances of the case and would not be relevant. Similarly, he submitted that the reliance placed by learned counsel Mr. Ravani on Criminal Reference No. 3/2009 in Special Criminal Application No. 1590/2009 by the Division Bench is only with regard to the maintainability of the revision. He has, therefore, submitted that there is no justification, and as there is no specific ground except recovery of the mobile phone, the impugned judgment and order cannot be said to be erroneous which would call for any interference.
12. Learned counsel Mr. Panchal has also referred to and relied upon the judgment of the Hon'ble Apex Court in the case of Devender Kumar and anr. v. State of Haryana and ors., reported in (2010) 6 SCC 753, and has emphasised the observations made in para 15.
13. In rejoinder, learned counsel Mr. Ravani for the CBI submitted it is not correct that the accused was with CBI for interrogation from 31.5.2012 to 3.6.2012. It was submitted that the court below was not required to evaluate the judgment and since recovery/discovery of the mobile phone has to be at the instance of the accused where he has exclusive knowledge as to where he had thrown which would be relevant. He again submitted that if it is recovery or may be he has stated that he has thrown, but it is a matter of custodial interrogation where it could be traced and the recovery will lead to further clue for the investigation. He, therefore, submitted that the present application may be allowed.
14. In view of the rival submissions, it is required to be considered whether the impugned order calls for any interference and the present petition can be entertained or not.
15. As it transpires from the facts stated hereinabove, respondent No.1-accused is charged with the offences under the Prevention of Corruption Act, and as stated in the FIR, as Dy. General Manager of SEBI, he had been involved in corruption and the other co-accused has been caught accepting the bribe and he was in constant touch through mobile phone and the conversation has been recorded. The first aspect which is required to be considered is that the court below has failed to appreciate that custodial interrogation/remand is not only for recovery of the mobile phone, but it is also for extracting information with regard to the modus operandi and the magnitude of the offence. Custodial interrogation/remand is one of the tools where information can be extracted on the basis of some material like mobile phone or recorded conversation. The mobile phone which respondent No.1-accused has stated that it is thrown by him has been accepted at the face value which in fact is a matter which requires custodial interrogation. Further, the mobile phone may reveal further details like SMSs, memory which may lead to further clue regarding other contacts or other persons which may lead to further investigation. Therefore, it cannot be easily brushed aside that the conversation of the accused with other co-accused has been recorded and it can be obtained from the service provider and therefore there was no need for such custodial interrogation.
16. At the same time, the court is conscious about the aspects of personal liberty and the limited scope of custodial interrogation. However, one is required to strike a balance between the right of the accused and the claim of the investigating agency-CBI for custodial interrogation/remand. The guidelines have been laid down by the Hon'ble Apex Court in a judgment in the case of Nandini Satpathy v. P.L. Dani and anr.,, reported in AIR 1978 SC 1025, which are required to be considered. The observations have also been made by the Hon'ble Apex Court in the subsequent judgments including the judgment in the case of Dinesh Dalmia v. CBI, reported in (2007) 8 SCC 770 as well as the judgment in the case of State through CBI v. Dawood Ibrahim Kaskar & ors., reported in (2000) 10 SCC 438.
17. Thus, while considering the application, a balance has to be maintained between the rival claims of the accused on the ground of personal liberty and that of the investigating agency like CBI for necessary investigation and the custodial interrogation for extracting the information which may lead to further clue regarding the investigation of the offence. Therefore, no hard and fast rule or straight-jacket formula can be there and it has to be considered depending upon the facts and circumstances in each case. The justification for custodial interrogation or remand by the CBI cannot be said to be without any basis and the court below has misdirected in appreciating that it is not the recovery of mobile phone only, but it is the right of the investigating agency to have custodial interrogation of the accused for extracting information which is exclusively within the knowledge of the accused. The submission made by learned counsel Mr. Panchal with emphasis regarding the recovery and discovery is a matter of perception when one states that such incriminating material has been concealed by the accused or whether it is thrown by the accused which is required to be recovered.
18. It is for such reason that custodial interrogation is necessary and the discovery of incriminating material which would be admissible in evidence under sec. 27 of the Evidence Act would be a relevant fact for which custodial interrogation or remand is required to be granted or allowed. In the facts of the present case, since custodial interrogation has already been granted for 3 days, it would not be justified to grant remand as prayed for keeping in mind the liberty and the right of the accused also. It may be noted that the investigating agency-CBI may require custodial interrogation for the purpose of investigating the magnitude, the modus operandi and the involvement of the accused in connivance with the others which may lead to further investigation. If it is not granted, it may cause prejudice to the right of the investigating agency and it may also affect the investigation as it would be then restricted only to the present accused and the other co-accused. It is in these circumstances, the interest of justice would be served if remand/custodial interrogation is granted for further 4(four) days.
19. The reliance placed by learned counsel Mr. Panchal on the judgment in the case of Devender Kumar (supra) would be of not much assistance as in para 16 the Hon'ble Apex Court has made it clear that the second application for police remand is also maintainable provided it is within the limit of period of 15 days.
20. Therefore, the present petition deserves to be allowed and accordingly stands allowed partly. The impugned order passed by the In-charge Special Judge, CBI, below the application for remand in Case No. RC-0292012A0011 dated 6.6.2012 is hereby quashed and set aside. Respondent No.1-accused is ordered to be remanded to the custody of CBI for 4 days, i.e., up to 18.6.2012 and he shall be produced before the Special Judge, CBI, on expiry of the period of remand before 3 p.m. on 18.6.2012 in accordance with law.
Rule is made absolute to the aforesaid extent. D.S. Permitted.
(Rajesh H. Shukla, J.) (hn) Top