Prem Chand Grag vs Central Bureau of Investigation

A.V. Chandrashekara, J.—Heard Sri. Diljit Singh Ahluwalia, learned counsel representing the petitioner and Sri. C.H. Jadhav, learned Senior counsel representing the CBI.

Petitioner is accused No.3 in Spl.C.C.No. 54/2014. A case is registered by CBI, Bangalore on the direction of the Hon''ble Apex Court relating to the illegal extraction of iron ore in some parts of Bellary and transportation of the same to Belekeri Port and thereafter transporting the same to other countries through ships. On a petition filed by Samaja Parivarthan Samudaya in W.P.(Civil) No.562/2009, the Hon''ble Apex Court chose to direct the CBI to register a case in connection with the illegal extraction and transportation of lakhs of tons of iron ore from Bellary to various countries and to thoroughly investigate the case. It is in this regard, petitioner is shown as accused No.3.

Prior to that, a case was registered at Ankola Police Station in Crime No. 189/2010 for the offence punishable under Section 406 of IPC. In fact charge-sheet had been filed in the said case for the offences punishable under Sections 120(B), 379 r/w Section 34 of IPC, consequent upon which a case is registered by the CBI at the direction of the Hon''ble Apex Court. Sections 120-B r/w 406, 409, 379, 411, 447 of IPC and Sections 13(2) r/w Section 13(1)(c) and (d) of Prevention of Corruption Act and Section 24 of Karnataka Forest Act have been invoked.

Petitioner is stated to be residing in Dubai. The trial Court has already issued non-bailable warrant to secure his presence. Apart from this, CBI has taken out Red Corner Notice and even has initiated extradition proceedings. It is in this regard, petitioner is apprehending arrest at the hands of respondent - Police. Hence, he had approached the .Special Court dealing with the CBI Cases in Bangalore Crl. Misc. No. 688/2014 under Section 438 of Cr. P.C. The said application came to be dismissed on 23.04.2014. Hence, the petitioner has approached this Court.

Learned counsel Sri. Diljit Singh Ahluwalia representing the petitioner has vehemently argued that entire investigation is completed and charge-sheet is filed and therefore, he is ready to appear before the Court. He has submitted that the CBI need not take extradition proceedings as he is willing to appear before the Court. It is argued that the petitioner cannot be subjected to any custodial interrogation in the light of the investigation being completed and charge-sheet being filed against him. He has placed reliance upon the decision of Hon''ble Apex Court rendered in the case of Mithabhai Pashabhai Patel & others v. State of Gujarat, CDJ 2009 SC 1014 disposed of on 06.05.2009. What is argued by him is that the power of remand in terms of Section 167 of Cr.P.C. is to be exercised when investigation is not completed. It is further argued that when once charge sheet is filed and cognizance of the offence is taken, the Court cannot exercise its power under subsection (2) of Section 167 of Cr.P.C and its power of remand can then be exercised only in terms of sub-section (2) of Section 309 of Cr.P.C. He has placed reliance upon the decision of a co-ordinate bench of this Court in the case of Sushil Kumar Valecha v. CBI, Bangalore in CRL.R.P.NO. 193/2014 disposed of on 11.07.2014.

Per contra, learned Senior counsel Sri. C.H. Jadhav has vehemently argued that question of exercising discretion vested under Section 438 of Cr.P.C. by this Court is not applicable to a person who is evading arrest since several years. It is argued that even the Ankola Police had completed investigation and charge-sheet had been filed and thereafter, the CBI has registered the case pursuant to the decision of the Hon''ble Apex Court mentioned above. He has argued that the petitioner is evading arrest. He has brought to the notice the specific observation made by the Hon''ble Apex Court in the case of Samaja Parivarthan Samudaya v. State of Karnataka - W.P.(CIVIL) No. 562/2009 disposed of on 07.09.2012. The relevant observation is as follows:

"As recommended in the report of the CEC the CBI should institute FIR(s) as suggested in sub paragraphs (I) and (IV) at pages 12 and 14 respectively of the report and carry out through and intensive investigation including, if so required, custodial interrogation of any accused".

Further reliance is placed upon the decision of the Apex Court in the case of Lavesh v. State (NCT of Delhi) (2012) 8 SCC 730. Paragraph 12 of the decision in Lavesh�s case is referred to by the learned Senior counsel and the same is as follows:

"From these materials and information, it is clear that the present appellant was not available for interrogation and investigation and was declared as "Absconder". Normally, when the accused in "Absconding" and declared as a "proclaimed offender", there is no question of granting anticipatory bail. We reiterate that when a person against whom a warrant had been issued and is absconding or concealing himself in order to avoid execution of warrant and declared as a proclaimed offender in terms of Section 82 of the Code he is not entitled to the relief of anticipatory bail".

At this stage, Sri. Diljith Singh Ahluwalia, learned counsel has vehemently argued that this petitioner has made serious allegation against Ranjith Sinha, former director of CBI about the demand made with this petitioner to pay a sum of Rs.15 crores so that he could let him off from the hook. He has argued that the CBI is after him in order to harass him as serious allegation is made against this former director. It is argued that if anticipatory bail is not granted, then, CBI would unnecessarily harass him and would virtually scuttle his process to substantiate the serious allegation made against the former director of CBI.

This Court is not concerned with the allegation made against the former director. As already pointed out, a Special Investigation Team (SIT) is constituted to look into the allegation made against the former director. Mr. Ranjith Sinha about the various attempt made to extract money from several accused. Nothing comes in the way of petitioner approaching the SIT and airing his grievance in any manner.

Suffice to state that the petitioner had been evading the notices and summons issued by the Court as well CBI. Petitioner has been in Dubai for more than five years. Without his presence and with the available materials, CBI had to file charge-sheet. What is observed by the Hon''ble Apex Court that normally when the accused is "absconding" and declared as a "proclaimed offender", question of granting anticipatory bail does not arise. Though petitioner is not declared as a "proclaimed offender" in terms of Sections 82 and 83 of Cr.P.C., Red Comer notice has already been issued and extradition proceeding has been initiated. Just because the petitioner is willing to appear before the Court and submit to the jurisdiction of the Court, the discretion exercised under Section 438 of Cr.P.C. cannot be exercised. Suffice to state that this is not a fit case to exercise discretion vested in this regard under Section 438 of Cr.P.C.

Accordingly, the petition is dismissed. Nothing comes in they way of petitioner approaching this Court directly under Section 439 of Cr.P.C. after surrendering before the Police or the Court as the case may be.