Disposed

Rajagopalan Sridhar and Anr. v. the State of Maharashtra and Anr.

Bombay HC7 Dec 2012WP/2145/2012

Case brief

AI extract

What is this about?

The High Court rejected petitions challenging CBI investigation transfer and issuance of Letters of Rogatory under Section 166-A CrPC, stating accused lack locus. It held the Special Public Prosecutor appointment order rendered unimplementable post-CBI transfer.

What did the court decide?

WP 1711/12 and 2553/12 rejected; WP 2145/12 dismissed as order unimplementable post-CBI transfer.

Rajagopalan Sridhar and Anr. Vs the State of… — Criminal Trial and Appeal | Bombay HC (2012)

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WP2145-12,1711-12&2553-12

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jp chavan

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL WRIT PETITION NO. 2145 OF 2012 WITH CRIMINAL WRIT PETITION NO. 1711 OF 2012 WITH CRIMINAL WRIT PETITION NO. 2553 OF 2012

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Shri Rajagopalan Shridhar and another ... Petitioners Versus The State of Maharashtra and others ... Respondents

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Shri S. R. Chitnis, Senior Advocate i/by Mr. Ashish Sawant for the petitioners in W.P. No.2145/12 and WP No. 2553/12

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Shri S. R. Chitnis, Senior Advocate i/by Mr. A. R. Kapadnis for the petitioner in W.P. No.1711/12

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Ms. M.H. Mhatre, APP for the Respondent-State in W.P. No.2145/12 Ms. P. H. Kantharia, APP for the Respondent-State in W.P. No.1711/12 and WP No. 2553/12

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Mr. Amit Desai, Senior Advocate a/w Mr. Filji Frederick , Ms. Suvarna Joshi i/by FF & Associate for Respondent No.2 in WP No.1711/12 and for Respondent No.4 in WP No.2553 /12

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Mr. Rajesh Desai for the Respondent No.3-CBI

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P.C.

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These petitions can be disposed of by a common judgment. The petitioners have been arraigned as accused in C.R.No. 387/2009 registered at Bundgarden Police Station Pune for the offences alleged against the petitioners are under Sections 403, 408, 418, 464, 467, 471, 477-A read with section 34 of the Indian Penal Code.

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It pointed out that charge sheet and supplementary charge sheet have been filed. The petitioners were employees of the Synetra Engineering and Construction Company Limited. They were holding high posts in the said company. The petitioners along with co-accused by misusing their position of employees allegedly incorporated various companies in India and abroad. The prosecution has alleged that the petitioners and the co-accused diverted huge freight amounts of their employer to their own companies. By opening accounts in India and abroad, it is alleged that the petitioners have diverted huge amounts to their accounts. The allegation is that the crime relates to fraud and misappropriation by the petitioners committed in various countries.

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On 17^th December, 2009 charge sheet was filed. On 15th June, 2010, supplementary charge sheet was filed against accused no.5.

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The challenge in Criminal Writ Petition No. 2253 of 2012 is to the notification dated 6^th February, 2010 issued by the Ministry of Personnel, Public Grievance and Pensions, New Delhi, by which investigation of the offence has been transferred to the Central Bureau of Investigation. The said notification has been issued in exercise of the powers conferred by Sub section 1 of section 5 read with Section 6 of the Delhi Special Police Establishment Act,1946. The challenge is to the said notification and action of transferring investigation to Central Investigation Bureau (for short C.B.I).

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The challenge in Criminal Writ Petition No. 1711 of 2012 is to the order dated 18^th July, 2011 passed below applications Exhibit 110 to 116 by

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WP2145-12,1711-12&2553-12

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the learned Chief Judicial Magistrate, Pune. By the order impugned, the learned Chief Judicial Magistrate, in exercise of the powers of under Section 166-A of Code of Criminal Procedure, 1973, directed that Letters of Rogatory in the prescribed form to be issued to the competent authorities in various countries as set out in the said order.

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As far as Criminal Writ Petition No. 2145 of 2012 is concerned, the petitioners have challenged the notification dated 19^th March, 2012 issued by the Law and Judiciary Department, State of Maharashtra, appointing the second respondent in the said petition as a Special Public Prosecutor for conducting the case before the learned Chief Judicial Magistrate.

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Learned senior counsel appearing for the petitioners submitted that the action of transferring the investigation to CBI is malafide. He submitted that even the action of making an application invoking powers under section 166A of the Code is malafide. He submitted that an application was made before the learned trial Judge by the complainant seeking relief under section 166-A of the said Code. He pointed out that the said application was adopted by the prosecution. He pointed out that the fact that the said application was adopted by filing purshis is reflected from the order dated 28^th April,2011 passed by the learned Chief Judicial Magistrate on the application at Exhibit 70 filed by the alleged authorized representative of the complainant. He submitted that thus the application made on behalf of the original complainant was an application in effect made by the Investigating Officer in as much as by filing a specific

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purshis all contentions in the application of the complainant were adopted by the investigating officer. He submitted that order on the said application was passed on 28^th April, 2012, and therefore, the documents which are referred to in the impugned order dated 18^th July, 2011 were available to the Investigating Officer. He urged that reading the order of the Apex Court as it is, the direction was to decide the application made by the Investigating Officer in accordance with law, and therefore, all objections to the said application were kept open. His submission is that the petitioners were not heard by the learned Magistrate before passing the order dated 18^th May, 2011.

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He further submitted that as the earlier application of the complainant will have to be treated as an application made by the prosecution, for the same relief, the second application made by the prosecution ought not to have been entertained by the learned Magistrate inasmuch as the order passed on the first application made by the complainant was never challenged and the said order has become final. He pointed out the aforesaid dates on which the charge sheet and supplementary charge sheets have been filed. He pointed out that after filing of supplementary charge sheet, the case was adjourned for framing charge. He pointed out that First Information Report was registered on 18th September, 2009 and as a result of malafide tactics adopted by the investigating agency, no progress has been made in the trial and even charge has not been framed. He submitted that the belated action of transferring the investigation to Central Investigation Bureau is illegal, as even supplementary charge sheet

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has been already filed.

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When the Court made query as to how the petitioners- accused can have locus to challenge the impugned orders, the learned senior counsel appearing for the petitioners relied upon the decision of the case DISHA Vs. State of Gujrat [2011 (13) SCC 237] . He submitted that only in exceptional cases, action of transferring investigation to CBI can be taken. He submitted that even as a result of orders under Section 166-A, the rights of the petitioners accused are affected. He submitted that application for appointment of Special Public Prosecutor was rejected by the State earlier and notwithstanding the said rejection, by the order impugned in Writ petition No.2145 of 2012, Special Public Prosecutor has been appointed. He, therefore, submitted that the petitioners are being harassed by the investigating agency. He pointed out that in terms of the order passed granting bail, one of the petitioners has executed a deed of transfer, and therefore, the application for cancellation of bail has been disposed of without granting any relief.

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We have carefully considered the submissions. Firstly we deal with Writ Petition No.1711 of 2012 and Writ Petition No. 2553 of 2012. The petitioners are the accused. It cannot be denied that there is abundant power vested in the Court under section 173 (8) of the Code of Criminal Procedure, 1973 of permitting or directing further investigation. Merely because a supplementary charge sheet has been filed against accused no.5, that does not take away the power of the Court to permit further investigation to be carried

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on in accordance with section 173(8) of the said Code.

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In the earlier part of the judgment, we have pointed out the nature of the allegations made in the charge sheet. It is alleged that out of the accused persons, present petitioners-accused who were employees of the complainant company used to control shipping business of the complainant company. It is alleged that they colluded with other accused and prepared counterfeit documents in the name of the complainant and the amounts of transportation freight from leased ships which was supposed to be deposited with the complainant have not been deposited in the complainant’s account but were deposited in the companies' account where the petitioners were directors or in the companies' account on which they had direct control. It is alleged that misappropriation and fraud committed by the accused is not only confined to India but it extends to England, America, Germany, France, New Zealand and other countries.

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We may note that even in the charge sheet dated 17^th December, 2009, investigating officer has made a note that considering the fact that offence extends to various countries, correspondence has been made and therefore there may be delay in obtaining evidence from the said countries. Therefore it was specifically mentioned that after collecting evidence, permission may be granted to produce the said evidence. Thus, looking to the nature and the seriousness of the accusations against the petitioners and other accused and ramifications of the alleged offence extending to several other

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countries, the challenge to the transfer of Investigation to the CBI has to be appreciated.

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We have perused the decision of the Apex Court in DISHA'S case (Supra). The decision was rendered in a Writ Petition filed for seeking direction that investigation be transferred to C.B.I and all the complaints made by various investors be transferred to the agency. In paragraph 21 the Apex Court observed thus:

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“21. Thus, it is evident that this Court has transferred the matter to CBI or any other special agency only when the Court was satisfied that the accused had been a very powerful and influential person or State authorities like high police officials were involved and the investigation had not been proceeded within a proper direction or it had been biased. In such a case, in order to do complete justice and having belief that it would lend the final outcome of the investigation credibility, such directions have been issued.”

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Thus, the Apex Court was examining the petition filed by one of the accused. In paragraph 24 of the Apex Court has observed thus:

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“24. In the instant case, the petitioner herself is the accused. A huge amount of Rs.60 crores has been collected from innocent persons giving them false assurances that their amount would have a high premium. It has not been alleged in the petition that any of the investors is very powerful or capable to manage the investigation against the petitioner or that the case of suicide f her husband is not being properly investigated. It is

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WP2145-12,1711-12&2553-12

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nobody's case that the police has unnecessarily harassed the petitioner; rather, the record of the case reveals that it is only after completing the investigation, that the charge-sheet has been filed against 13 persons including the petitioner. No allegation of malafide or bias has been alleged against any investigating authority nor had it been pleaded that the chargesheet had been filed against the petitioner without investigating the case or having any vindictive attitude towards the petitioner. In fact, the petition is based purely on mere apprehension by the petitioner. None of the grounds taken by the petitioner for transfer is tenable. ”

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It is obvious that CBI has been appointed in the present case

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for carrying out further investigation. The petitioners being accused have no locus standi to challenge the decision to transfer investigation to C.B.I. The issue of locus of the accused is well settled . In any case, we find that no departure has been made by the Apex Court in the case of DISHA (supra).

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We have already noted the nature of the allegations in the charge sheet and in the supplementary charge sheet. Therefore, this is not a case where this Court can exercise extra ordinary jurisdiction under Article 226 of the Constitution of India and interfere with the decision of transferring investigation to the C.B.I.

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Now turning to Criminal Writ Petition No. 1711 of 2012, we find that the order impugned has been passed in exercise of powers under Section 166-A of the said Code. Operative part of the said order reads thus:

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WP2145-12,1711-12&2553-12

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“1] Application Exhibit 110 to Exhibit 116 are allowed.

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2] Issue Letters Rogatory in prescribed from to the Hon'ble Competent Authorities in Singapore, U.A.E. U.S.A., united Kingdom, Hongkong, Switzerland and France to collect the evidence on the points mentioned in Annexure “G” enclosed with the applications Exhibits 110 to 116 with request to send back the same at the earliest as possible as the accused Nos. 1 and 2 are Under Trial Prisoners in the present case.

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3] The copy of this order shall be kept with the application Exhibits 111 to 116.”

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It will be necessary to make reference to Section 166-A of the said Code, which reads thus:

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166-A. Letter of request to competent authority for investigation in a country or place outside India. (1) Notwithstanding anything contained in this Code, if, in the course of an investigation into an office, an application is made by the investigating officer or any other superior in rank to the investigating officer that evidence may be available in a country or place outside India, any Criminal Court may issue a letter of request to a Court or an Authority in that country or place competent to deal with such request to to examine orally any person supposed to be acquainted with the facts and circumstances of the case and to record his statement made in the course of such examination and also to require such person or any other person to produce any document or thing which may be in his possession pertaining to the case and to forward all the evidence so taken or collected or the authenticated copies_

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WP2145-12,1711-12&2553-12

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thereof or the thing so collected to the Court issuing such letter.

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(2) the letter of request shall be transmitted in such manner as the Central Government may specify in this behalf.

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(3) Every statement recorded or document or thing received under sub-section (1) shall be deemed to be the evidence collected during the course of investigation under this Chapter.”

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Sub section 1 of Section 166-A of the said Code begins with a non obstante clause which shows that Section 166-A has overriding effect over the other provisions of the said Code. On simple reading of the provision it becomes obvious that essentially the action under Section 166-A of the said Code is a part of investigation. The accused cannot raise any objection to a step being taken under section 166-A for collecting evidence in other countries.

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It will be necessary to make a reference to the reasons recorded by the learned Magistrate in the impugned order. In the impugned order, the learned Magistrate has referred to the note put by investigating officer on the charge sheet filed on 7^th December, 2009 recording the fact that correspondence has been made with authorities in various countries. By the said note, he sought leave to produce additional evidence. It will be necessary to make a reference to paragraph Nos. 13 and 14 of the impugned order which read thus:

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WP2145-12,1711-12&2553-12

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“13. On hearing the arguments advanced by the Investigating Officer, it reveals that on 03.09.2010, the Dy. Commissioner of Police, Zone II, Pune City had sent letter No.DCP/Zone II/LR 4060/2010 and the Investigating Officer vide his letter dated 03/09/2010 bearing No. 5978/2010 made request to the Hon'ble Director of Public Prosecution of Maharashtra State to grant permission/concurrence to initiate the process of Letter Rogatory U/s 166A of Cr.P.C. To collect the evidence from overseas. These two documents prima facie show that on 03.09.2010 the Investigating Officer has started the process for getting Letter Rogatory for the purpose of further investigation in the present crime by making the application to the Competent Authority. It also shows that on 09.09,2010 the Hon'ble Director of prosecution, Maharashtra State, Mumbai, vide its letter No.Ref/79/2047/2010 informed the Dy. Commissioner of Police, Zone II, Pune city that said department has recommended that necessary concurrence be granted for making request of Letter Rogatory for further investigation.

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It also appears that on 03.01.2011 the Dy. Commissioner of Police , Zone II, Pune City had sent the letter bearing O.No.DCP/Zone II/LR/11/2011 to the Special Inspector General of Police Interpole, Liaison officer, S.C.R.B. CID, MS, PUNE and made request to forward the applications for Letter of Rogatory to the Ministry of Home Affairs, new Delhi for concurrence. Thereafter, in response to said letter on 31.01.2011 the confidential reply bearing O.No.SCRB/Interpole/714/2011 was received in the office of Dy. Commissioner of Police, Zone II, Pune City and in compliance of the objections mentioned therein, the

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Investigating Officer has made the necessary compliance including inserting the name of original complainant in the Form No.1A whose copy is in R & P of this proceeding.”

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In paragraph 15, the learned Magistrate has noted that Investigating officer has followed guidelines of the Ministry of Home Affairs under letter dated 31^st December, 2007. In further portion of paragraph 15, it is noted that Ministry of Home Affairs, on 23^rd May, 2011 has given concurrence for issuance of Letters Rogatory to the competent authorities in various countries. Learned Magistrate has referred to 'Mutual Legal Assistance Treaty” between India and the countries to which Letters have been ordered to be issued. The learned Magistrate has observed that after considering the material, he was satisfied that Investigating officer intended to carry out further investigation in order to collect the evidence of freight collecting agents, banks, companies/ E-mail service providers in seven countries. With these reasons, the impugned order under Section 166-A of the said Act has been passed.

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We have perused the order passed on Exhibit 70 made by the representative of the complainant. It is true that in Paragraph 3(a) of the order passed on Exhibit 70 it is noted that a purshis was filed by the prosecution of adopting its earlier say at Exhibit 65. The learned Magistrate has referred to Exhibit 65 wherein the Investigating officer stated that in terms of a letter of the Ministry of Home Affairs procedure has been started to enable him to file an application under Section 166-A of the said Code. In paragraph 5 of the

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said order, learned Judge has noted that accused no.1 filed his reply raising objection that the application was not maintainable. It was contended by the accused No.1 that charge sheet is already filed and the application should not be entertained.

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Perusal of the order below Exhibit 70 shows that the said application has not been rejected on merits, but the finding of the learned Judge appears to be that the application moved by the complainant’s authorized representative for seeking an order under Section 166-A of the Code was not maintainable.

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Even the learned senior counsel appearing for the petitioners fairly stated that the order below Exhibit 70 is not on merits. Therefore, the prayer under Section 166-A which is granted by the learned Magistrate by the impugned order was never considered on merits by the learned Magistrate while passing earlier order below application at Exhibit 70.

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As regards malafides, learned senior counsel appearing for the petitioners accepted that there are no specific assertions of malafides in the petition. As pointed out earlier, the exercise to be conducted in accordance with Section 166-A of the said Code is a part of investigation. Apart from this fact, on merits, there is every justification for passing the impugned order, the petitioners, who are accused, have no locus to challenge the impugned order.

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Hence there is no merits in the aforesaid two petitions.

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Now we turn to the third petition (Writ Petition No. 2145 of 2012) wherein challenge is to the order passed by the State Government appointing a Special Public Prosecutor. The said order has been passed on 19^th March, 2010. As pointed out, now, with the concurrence of State Government, the investigation has been transferred to the C.B.I. The said order has been passed on 6^th February, 2012. After the investigation was transferred to C.B.I. with the concurrence of the State Government, now the State Government cannot exercise powers of appointing a Special Public Prosecutor. Therefore, only on this ground, now the order dated 19^th March, 2012 cannot be implemented and acted upon. It is obvious that now the decision, if any, of appointing Special Prosecutor will be at the instance of the investigating agency viz. the C.B.I.

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We must make it clear that we have made no adjudication on the merits of pending criminal cases and reference to the allegations against the accused in the present judgment, is only for the purposes of testing legality and validity of the impugned orders. Hence we pass the following order:-

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O R D E R

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i. Writ Petition No. 2553 of 2012 and Writ Petition No. 1711 of 2012 are rejected.

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ii. The order dated 19th March, 2012 which is subject matter of challenge

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Writ Petition No. 2145 of 2012 cannot be acted upon, in view of the fact that the investigation has been entrusted to the CBI with concurrence of the State Government. It is, therefore , not necessary to examine the grounds of challenge to the appointment of Special Public Prosecutor. As we have held that the said order cannot be acted upon, now it is not necessary to entertain this petition and the same is accordingly disposed of.

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iii. Parties to act upon authenticated copy of this order.

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( S.S. SHINDE, J )

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( A.S. OKA, J )

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Rajagopalan Sridhar and Anr. v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

Rajagopalan Sridhar and Anr. v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

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