Tripurari Mohan Prasad v. State Of Bihar — 1997 DIGILAW 227 (PAT)

Judgment S. K. Singh and j. JJ. 1. The present application under Sec.482 of the Code of Criminal Procedure, has been filed by the petitioner for quashing the order of remand dated 24-12-1996 in RC 77 (A)96-Pat. corresponding to Special Case no.69/96 under Sections 120-B/420/467/468/471 and 511 of the Indian penal Code and Sec.8 (2) read with section 13 (1) (c) and (d) of the prevention of Corruption Act, 1988 by special Judge (C. B. I.), Patna. 2. The main contention of learned counsel for the petitioner is as to whether the petitioner who had earlier been taken in custody and remanded in connection with RC 34 (A) 96 corresponding to Special Case No.35/96 can again be remanded in the present case as the allegation against the petitioner in both the cases are same. By filing a supplementary affidavit dated 6-3-1997 a further remand order of the judicial Magistrate dated 26-12-19% has been brought on record as contained in Annexure-5 stating therein that the said remand order had been passed without application of mind and as such, the petitioner should be directed to be released forthwith. 3. The short fact is that the petitioner who is proprietor of M/s bihar Surgico Medico Agency has been a supplier of various types of medicines to the Animal Husbandry Department, government of Bihar since 1977. Pursuant to the order dated 11-3-1996 passed by this Court in C. W. J. C. No.1617 of 19% and other connected writ applications and the said order after being confirmed by the Supreme Court by a judgment dated 16-3-19% in slp/civil 5911 of 19%, the CBI/spe took over about 47 cases from Bihar police which were registered under various Police Stations of different districts in the State of Bihar on the allegation of fraudulent withdrawal of huge sum of money from the Government treasuries. Apart from taking over investigation in those 47 cases, the CBI also registered some new cases. The petitioner has been made as one of the accused in many of such cases. 4. In support of their contention that the petitioner cannot be remanded in the present case as the same relates to same and similar occurrence and is in continuity of the earlier occurrence in which the petitioner was earlier remanded, as such, he cannot be remanded again in the present case and be put under double jeopardy. 4. In support of their contention that the petitioner cannot be remanded in the present case as the same relates to same and similar occurrence and is in continuity of the earlier occurrence in which the petitioner was earlier remanded, as such, he cannot be remanded again in the present case and be put under double jeopardy. In support of the said contention, reliance has been made upon a Division Bench judgment of this Court reported in 1996 (2)P. L. J. R.814 in the case of Ravi Sinha V/s. The State of Bihar and others. In the said case it has been held that if an accused is denied bail and has been remanded back to judicial custody from time to time by series of remand orders passed by Special Judge and benefit of sub-section (2) of Sec.167 of the Code of criminal Procedure (hereinafter to be referred to as the Code) has not been allowed to the accused even after no charge-sheet being filed by the Investigating Officer of the C. B. I, within the statutory period and the C. B. I. restoring to device of asking for remand of accused in another connected case, such a remand can be valid only if the two ceases are distinct and different transactions. If it is found that two cases under investigation are in reality the same and relates to the same occurrence, the remand order must be quashed as being without jurisdiction since Sec.167 (2) of the Code does not permit any further remand, if the investigation fails to file charge-sheet within the period of ninety days. 5. In view of said decision of the division Bench of this Court the only fact which has to be seen as to whether the remand of the petitioner in the present case relates to the same occurrence and the two cases are not distinct and different and arise from different transactions? 6. A Division Bench of this Court in the above mentioned cases while coming to the said conclusion had taken into consideration the fact that the period of transaction in both the cases were the same i. e. was for the year 1992. The allegation was also precisely same. Both the transactions related to the month of March, 1992, even the amount withdrawn was the same. The allegation was also precisely same. Both the transactions related to the month of March, 1992, even the amount withdrawn was the same. As no charge sheet could be submitted within the statutory period and the petitioner was to be released under Sec.167 (2) of the Code, remand was sought in the second case which was precisely for the same occurrence. In that view of the matter, said remand was held to be bad and had been quashed in view of principles laid down by the Supreme Court in the case of Central Bureau of Investigation (Special Investigation Cell-I)New Delhi V/s. Anupam, J. Kulkami reported in AIR 1992 SC 1768 . 7. Contesting the claim of the petitioner it has been argued by the learned Standing Counsel for the CBI that the aforesaid judgment of the division Bench is of no avail to the petitioner as the facts in the said case and the present case are entirely different. According to him though both the cases arise from the district of godda but the period of transaction, the amount fraudulently withdrawn; and even the name of the accused persons are different and as the same did not relate to the same occurrence which was also not for the same period no benefit can be taken from the said decision of the Division Bench of this court. According to learned Counsel the earlier case i. e. Special Case 35/96 was for the period 1992 to 5-7-1994 in which the petitioner was a named accused who along with Dr. Kashi Nath prasad Sinha, District Animal Husbandary Officer, Godda, District Treasury officer, Godda and other named accused persons had fraudulently on forged bill withdrawn amount from the godda Treasury for wrongful gain to himself and wrong ful loss to the State exchequer. 8. The present case in which the petitioner has been remanded and is for the period September, 1994 to October, 1996 in which the petitioner in conspiracy with Dr. Om Prakash Diwakar, the then Regional Director, Dumka and Incharge, D. A. H. O. Godda, Dr. Ajit Kumar Sinha, TVO (M), Godda, laxmikant Das, Accountant and other named accused persons had fraudulently and dishonestly defrauded the AH. department and Government of Bihar to the extent of Rs.56,94,060.00. Om Prakash Diwakar, the then Regional Director, Dumka and Incharge, D. A. H. O. Godda, Dr. Ajit Kumar Sinha, TVO (M), Godda, laxmikant Das, Accountant and other named accused persons had fraudulently and dishonestly defrauded the AH. department and Government of Bihar to the extent of Rs.56,94,060.00. Admittedly the name of accused persons the period of transaction, the amount of fraudulent withdrawal are different in both the cases, as such, to my mind also no benefit can be taken from the judgment of the Division Bench in Ravi sinha (supra) as in the said judgment it has clearly been stated that such remand is valid if the two cases are distinct and different and arise from different transactions. Admittedly, both the transactions are different as the period, money involved and the persons involved are different. Only by the petitioner being named accused in both the cases and the facts that both relate to fraudulent withdrawal from Godda treasury would not make both the cases same and similar. As such, this contention of learned Counsel for the petitioner cannot be sustained. 9. Learned Standing Counsel for the C. B. I. in this regard has also relied upon a judgment of this Court passed in Cr. Misc. No.23095 of 1996 in the case of Dr. K. M. Prasad V/s. The State of bihar reported in 1997 (1) BLJ 781 in which the order passed by the Special judge, CBI Patna dated 26-11-1996 by which the petitioner was remanded in the judicial custody as in the earlier case in which the petitioner was on remand and as the statutory period of 90 days for submission of charge-sheet was to lapse and the petitioner was likely to be released under the provision of sub-section (2) of Section 167 of the Code, the subsequent remand should have been held to be bad. In the said case, the petitioner also sought a declaration that modus operandi adopted by the Central bureau of Investigation of arresting and seeking remand of the petitioner only in one case out of several cases against him at a time and only upon mere completion of statutory period of 90 days in custody arresting him afresh and seeking his remand under Section , 167 of the Code in the second case again amounted to abuse and misuse of a power conferred under Sec.167 of the Code and was also violation of the guaranteed right under Article 21 of the Constitution of India. 10. Learned single Judge after considering the relevant Sections and the law laid down by the Supreme court had come to the conclusion that the impugned order of remand passed by the Special Judge, cannot be said to be illegal and in the teeth of provision of Sec.167 of the Code or Article 21 of the Constitution of India. To my mind, also the said decision of learned single Judge entirely covers the case of the petitioner as the facts of both of the cases were more or less same as the petitioner of the said case was also remanded in the subsequent case after the statutory period of 90 days have been compeleted and charge-sheet could not be submitted and at that time he was taken on remand in another case. The only difference which the petitioner can claim is that in the present case, the petitioner has already been released on bail under the provision of Sec.167 (2) of the code and on the Jail Gate he was rearrested and produced in Court for remand in another case as I have already stated above, the said remand has been held to be valid both by learned single Judge as well as by the Division bench, if it was found that both the cases did not relate to same occurrence. As, I have already stated from reading the two F. I. Rs it clearly transpires that two cases are distinct and different and arise out of different transactions. 11. As, I have already stated from reading the two F. I. Rs it clearly transpires that two cases are distinct and different and arise out of different transactions. 11. Further reliance by learned standing Counsel for the C. B. I. has been made on the judgment of a division Bench in the case of M/s. Saad -and Company, Ranchi and Mis Chotanag-pur Cattle Feed Supply and Company V/s. Central Bureau of Investigation through its Superintendent of Police, Ranchi and other analogous cases vide Cr. Misc. No.18776 of 1996, Cr. Misc. No.18762 of 1996 and Cr. Misc. No.21177 of 1996 and Cr. Misc. No.22524 of 1996 (reported in 1997 (1) BLJ 934 )by which after considering several judgments of this Court as well as Apex Court, this court has come to the conclusion that aforesaid order of subsequent remand in different cases cannot be quashed on the basis of the submission of the counsel of the petitioner that they were passed in perverse consideration. It has been held that while exercising its power under Sec.482 of the code, the anxiety of this Court is to prevent an abuse of the process and to secure the ends of justice. In the said case, the Court found that there was no abuse of judicial power in passing of the aforesaid order. The present case is fully covered by the said decision of a division Bench. 12. As far as Annexure-5 the remand order dated 26-12-1996 is concerned, it has been argued that the said order was passed mechanically which would be borne out by bare perusal of the same and the petitioner was being remanded to custody without application of mind as such, the petitioner should be directed to be released forthwith. As the said order is dated 26-12-1996 and subsequent thereto many remand orders have already been passed and as the said remand order had lost its force on 6-1-1997 itself, said order cannot be challenged at this stage, as the petitioner was in custody due to subsequent remand order and not the order as contained in Annexure-5. 13. For the reasons as stated above, i do not find any merit in the present application for quashing the impugned order dated 24-12-19%. The same is dismissed. Application Dismissed.