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2000 DIGILAW 649 (CAL)

Anil Kumar Agarwala v. State of West Bengal

2000-12-20

JOYTOSH BANERJEE, SUJIT BARMAN ROY

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Judgment 1. By this application petitioners have prayed for anticipatory bail as they apprehend that they may be arrested by the police in connection with Chopra P. S. Case No. 87/2000. 2. However, a serious objection bas been raised by teamed Additional P. P. against maintainability of the present petition on the ground that exactly similar application being C.R.M. No. 1720/2000 preferred by, the petitioners on an earlier Possession seeking exactly same relief was rejected by another Division Bench of this Court by an order passed on 18.5.2000. 3. According to Mr. S. S. Roy, learned Counsel for the petitioners, this application is maintainable as because new circumstances have developed since earlier application for anticipatory bail was turned down by this Court. On the other hand contention of learned Additional P.P. is that in no case such application is maintainable second time after similar application seeking exactly same relief was turned down by this Court. His further contention is that development of new circumstances since rejection of the earlier application cannot lend maintainability to the present application witness is aforesaid contention learned Additional P. P. cited a decision of this Court in (I) Ekkari Ghosh @ Jitendra v. State of West Bengal, 1994 (2) CHN 123 . He also cited another decision of this Court in (2) Kalidas Mitra v. State, 1989 (3) Crimes 652. On the other hand Mr. Roy cited large number of decisions in support of his contentions. It is true that this Court gave conflicting decisions on the aforesaid question of law. 4. We do not like to express any opinion on this question as because we are of the view that even if we assume that in certain circumstances a second application under Section 438 of the Code seeking similar relief is maintainable as after bearing the learned Counsel for both sides and on perusal on the materials placed before us we are of the opinion that no such new circumstance could be brought to our notice which may lend maintainability to the present application. 5. 5. Petitioners arc wanted in connection with the aforesaid case under Sections 411/414/34 I.P.C. Fact of the case is that a Sub-Inspector of Police of the said Police Station lodged a written complaint on the basis of which aforesaid F.I.R. was registered alleging, inter alia, that acting upon a telephonic instruction from the Sub-Divisional Police Officer, Islampur, said Sub-Inspector of Police intercepted a vehicle when it was moving suspiciously on a highway at about 11 a.m. and the same was brought to the Police Station. One Dinesh Sharma and Awadesh Singh were occupying the said vehicle and upon interrogation said Awadesh Singh divulged that petitioner No.2, Pradip Kumar Agarwala is the owner of the said vehicle. But, on inspection of the R.C. book, it was found that petitioner No.2 is not the owner of the said vehicle. Rather one Raju Agarwala of Siliguri is the owner 0" the said vehicle as noted in the said R.C. book. On further interrogation aforesaid arrested accused persons stated that they did not know any Raju Agarwala being the registered owner of the said vehicle. In the said complaint, it was further alleged that upon search of the vehicle an amount of Rs. 11,02,850/- in Indian currency and another amount of Rs. 1,000/- in Nepalese currency were recovered from the said vehicle and upon further interrogation in connection therewith it was stated by the aforesaid two accused persons that the accused persons were deputed by petitioner No.1, Anil Kumar Agarwala to collect money from petitioner No.3, Subhkaran Agarwala which was lying with petitioner No. 3 as sale proceeds of some gold and silver jewellery /articles belonging to the mother of petitioner Nos. 1 and 2. Petitioner No.3 happens to be the maternal uncle of petitioner Nos. 1 and 2. It was further stated in the said complaint that on the basis of the aforesaid facts, it was suspected that the accused persons received stolen property being the aforesaid money and, therefore, the accused persons who were occupying the said vehicle were arrested. 6. Apprehending arrest in connection with the said case, the present petitioners approached this Court by tiling C.R.M. No. 1020/2000 for anticipatory bail. 6. Apprehending arrest in connection with the said case, the present petitioners approached this Court by tiling C.R.M. No. 1020/2000 for anticipatory bail. However, this Court on perusal of the C. D. rejected the said prayer of the present petitioners by an order passed on 18.5.2000- Now, the petitioners have approached this Court afresh for anticipatory bail in connection with the same case on the ground that some new circumstances have developed meanwhile and hence, the present application is maintainable. It, therefore, appears to us that we are not called upon nor we have any such power/jurisdiction to decide the correctness of the order dated 18.5.2000 passed by this Court in C.R.M. No. 1720/2000 rejecting similar prayer of the petitioner for anticipatory bail. Contention of the petitioners is that the Sub-Divisional Police Officer, Islampur by his letter dated 25.4.2000 informed the Deputy Director, Enforcement Directorate, Government of India, Calcutta in connection with the very same case that during interrogation of the arrested persons it appeared to the SD.P.O. that one organised racket is doing Hawala business on a large scale for which the requested the Enforcement Directorate to investigate the matter under the Foreign Exchange Regulation Act. Soon thereafter, on 27.4.2000 one Mr. S. K. Ghosal, Enforcement Officer, Enforcement Directorate, Government of India, Calcutta made an application before the S.D.J.M., Islampur, stating, inter alia, that he was informed by the S.D.P.O. of Islampur for investigating the matter treating the seized money "as Hawala transaction by organised racket and prayed that the seized money should not be released to any person and that same should be kept with the S.D.P.O., Islampur." Learned Judicial Magistrate did not pass any order on the said application and merely directed to keep such application in the file. Further case of the petitioners is that by letter dated 16.11.2000 issued by the Deputy Director, Income Tax. Department under Section 131 of Income Tax Act called upon mother of the petitioner Nos. 1 and 2 to appear before him on 21.11.2000 and to produce bank statement, cash book, date of acquisition, bill of purchase of jewellery. Soon thereafter, said Nathni Devi Agarwala in compliance with the said notice, appeared before the Deputy Director, Income Tax Department through her Advocate and filed relevant documents. 1 and 2 to appear before him on 21.11.2000 and to produce bank statement, cash book, date of acquisition, bill of purchase of jewellery. Soon thereafter, said Nathni Devi Agarwala in compliance with the said notice, appeared before the Deputy Director, Income Tax Department through her Advocate and filed relevant documents. Said documents included a voluntary disclosure petition and certificate of Income Tax Commissioner accepting the voluntary disclosure and determining the tax payable by said Smt. Nathni Devi Agarwala and she paid the tax accordingly. She also produced documents showing sale of some ornaments/silver utensils and also documents showing the sale proceeds of the ornaments/articles to be Rs. 11,02,850/-, an affidavit of said Smt. Nathni Devi was also produced. Thereafter, the Income Tax Authorities by letter dated 23.11.2000 required said Nathni Devi Agarwala to appear before such authorities on 27.11.2000 for further investigation into the matter. However, said Smt. Nathni Devi Agarwala by letter dated 27.11.2000 enclosing therewith a Medical Certificate prayed for adjournment. On or about 29.11.2000 Income Tax Department filed an application stating the aforesaid facts regarding seizure of the aforesaid amount of money by Chopra Police Station from the Maruti Car and sought for an order to seize the amount from the custody of the Chopra Police Station after obtaining appropriate warrant of authority from the Directorate of Income Tax. However, learned S.D.J.M. fixed a later date for further hearing of the matter. We do not know if in the meantime any such order has at all been passed by the learned SD.J.M. 7. Relying on the aforesaid facts, it was contended by the learned Counsel for the petitioners that aforesaid facts are new development and, hence, the present petition is maintainable. It is further contended on behalf of the petitioners that these facts as stated above were not known to the petitioners when they filed their earlier application for anticipatory bail and, therefore, the Division Bench of this Court rejected their prayer for anticipatory bail. Could these facts be placed before the Division Bench of this Court, perhaps their earlier application for anticipatory bail would have been allowed. 8. However, we have perused the previous application filed by the petitioners. Could these facts be placed before the Division Bench of this Court, perhaps their earlier application for anticipatory bail would have been allowed. 8. However, we have perused the previous application filed by the petitioners. It appears from Paragraphs 5 and 6 of the said application that it was pleaded therein that the accused who are occupying the Maruti vehicle were produced before the S.D.J.M., Islampur on 24.7.2000 and I.O. made a prayer for Police remand. In the said remand application, it was stated by the Police that for further investigation into the matter by the Enforcement Directorate, Government of India, accused may be required to be present as the case appeared to be one of Hawala transaction. A request was also made to the Enforcement Directorate to investigate the matter. It was further stated in Paragraph 6 of the previous application for anticipatory bail that another application was made by S. K. Ghosal, an Officer of the Enforcement Directorate, before the learned S. D. J. M. stating that pursuant to the report/letter received from the S.D.P.O., Islampur to take up investigation of the case under Foreign Exchange Regulation Act, inter alia, praying that the seized currency may be kept with the S. D.P.O., Islampur for the purpose of necessary investigation under the provisions of Foreign Exchange Regulation Act. It was also stated in .the said application that two summons were issued under Section 40 of FERA to both such accused which were handed over to the S. D. P.O., Islampur with a request to serve the same on the said two accused persons under proper acknowledgment. 9. It is therefore, clear from the aforesaid discussion that these facts as stated in the proceeding paragraphs were duly pleaded by the petitioners in their previous application for anticipatory bail. It is, of course, true that notices under Section 40 of the FERA Act till then not served upon the petitioners or any other accused persons. However, from the aforesaid facts, it is apparent that the petitioners had full knowledge or at least information that Enforcement Directorate issued notice upon two accused persons under the provisions of Foreign Exchange Regulation Act though service of such notices could not be affected till then. However, from the aforesaid facts, it is apparent that the petitioners had full knowledge or at least information that Enforcement Directorate issued notice upon two accused persons under the provisions of Foreign Exchange Regulation Act though service of such notices could not be affected till then. In these circumstances, initiation of proceeding under the Foreign Exchange Regulation Act is not at all a new circumstance which was unknown to the petitioners or to this Court when the previous application for anticipatory bail was rejected. Of course, issuance of notice upon the mother of the petitioners by the Income Tax Department was not known to the petitioners as such notices were issued long after rejection of the application for anticipatory bail. Therefore, only new development that took place since rejection of earlier application for anticipatory bail and which was unknown to the petitioners or to this Court at that time was initiation of actions/proceeding under the provisions of Income Tax Act only. None of the other facta, as already stated in regard to notices/proceedings/investigation under the provisions of Foreign Exchange Regulation Act are new. These facts were known to the petitioners as admitted in the previous application for anticipatory bail. 10. Therefore, after hearing the learned Counsel for the parties and upon perusal of the materials-on-record we do not find new development of any such new circumstances since rejection of their previous application for anticipatory bail to justify or lend maintainability to the present application. Initiation of proceeding or issuance of notice under the provisions of Income Tax Act cannot render the present application for anticipatory bail non-maintainable as because we are of the view they do not bring about any change in the fact situation of the case as it existed at the time of rejection of previous application for anticipatory bail and now for the purposes of present application under Section 438 Cr. P.C. 11. We do not nor we can express any opinion as to the correctness or propriety of the order dated 18.5.2000 by which previous prayer of the present petitioners for anticipatory bail was rejected by this Court. Therefore, we are constrained to hold that in these circumstances of the present case second application for anticipatory bait is not maintainable and hence same is rejected. Roy, J. Banerjee, J. S. K.G.