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2004 DIGILAW 1152 (PNJ)

Sanjeev Kumar v. Central Bureau Of Investigation

2004-10-08

AMAR DUTT

body2004
Judgment Amar Dutt, J. 1. The petitioner, who is named as one of the accused in FIR No. 174 dated 23.5.2003, under Sections 406/420/386/506/120-B of the Indian Penal Code read with Sections 25/27 of the Arms Act earlier registered in Police Station, Civil LInes, Amritsar, has filed the present application for grant of anticipatory bail. In relation to the FIR, which was registered on the basis of an application moved by Honble Mr. Justice Ajit Singh Bains (Retd.), Chairman of the Human Rights Organisation, Civil Writ Petition No. 8521 of 2003 was filed in this Court for transfer of investigation to the Central Bureau of Investigation and after requisite orders had been passed in this regard, respondent No. 1 registered case No. RCI(S)/2003/SIU-V/SIC, II/CBI, New Delhi. 2. Respondent No. 2, who is evidently one of the star witnesses, during the investigation of the case, had given a statement to the police of Amritsar district and subsequently her statement was recorded by the Chief Judicial Magistrate, Amritsar. In both these statements, she had evidently implicated the petitioner and on this account he had moved Criminal Misc. No. 54633-M of 2003 before this Court. this Court had, after giving the following facts :- "The main ground, on which the petitioner seeks to maintain this petition, is the assertion that neither in FIR No. 174 nor in RC1(S)/2003/SIU/V/SIC, II/CBI, New Delhi, which has been registered by the CBI, on the basis of the direction of this Court in Civil Writ Petition No. 8521 of 2003, is there any mention of his name in connection with any of the misdemeanours that had been highlighted therein. According to the petitioner, there was no prima facie evidence against him and the subsequent statement of Ms. Neelam Sidhu, on the basis whereof, he is sought to be involved cannot be relied upon as her statement is highly belated and she has not tried to approach the police on any earlier occasion. He further states that during the pendency of the application before the Sessions Judge, Patiala, he has joined the investigation and the observation in the order of the said officer to the effect that he has not cared to join the investigation is against the record. He further states that during the pendency of the application before the Sessions Judge, Patiala, he has joined the investigation and the observation in the order of the said officer to the effect that he has not cared to join the investigation is against the record. In view of this, he submits that a case is made out in which respectable men like him should be protected against the harassment, which he is bound to suffer at the hands of the police and appropriate order may be passed granting him anticipatory bail in the event of his arrest. Mr. Rajan Gupta, Standing Counsel for CBI admits that the petitioner had appeared before the Investigating Officer on 21.10.2003, on which date, he had indicated that he was not feeling well and would appear on the following day. It was also submitted that the petitioner had appeared before the Investigating Officer but as he was not cooperating with the officer by clearly answering the queries of the investigating agency, it is imperative that the Central Bureau of Investigation may be allowed to question the petitioner while in custody so that some head-way could be made in the investigation of the case. Mr. Gupta also pointed out that though in the initial FIR, there is only a passing reference to the use of women and money by management of M/s Amritsar Communication Network Private Limited, yet during the course of investigation before the Punjab Police, at the first instance and before the Chief Judicial Magistrate, Amritsar when her statement was recorded on the direction of this Court and thereafter before the Investigating Officer of the Central Bureau of Investigation, Ms. Neelam Sidhu had made a detailed statement regarding the circumstances in which the petitioner was responsible for exploiting her sexually and forcing her to enter upon sexual liaisons with some officers, will have to be confronted to the petitioner so as to throw light upon modus operandi adopted by the petitioner and his co-accused for making money and for doing so using money and muscle power for achieving their ends. For exploring this angle, it was submitted that the Investigating Officer would require custody of the petitioner so as to interrogate him regarding various assertions made by Ms. For exploring this angle, it was submitted that the Investigating Officer would require custody of the petitioner so as to interrogate him regarding various assertions made by Ms. Neelam Sidhu and two other girls, who have made similar statement as it would be impossible for the agency to effectively question the petitioner when he is ensconced with a protective order of the Court requiring the officer to admit him to bail." and hearing the learned counsel disposed of the petition with the following observations :- "The present case, which initially sought to bring into focus, the use of muscle and money power by misguiding entrepreneurs for effectively controlling the supply of the T.V. signals in the city of Amritsar, the course of investigation brought to light the exploitation of human weaknesses towards the sex by those persons for sustaining the control so achieved. Neelam Sidhu and two other girls have given the details of how working women were being exploited sexually not only by their employers but also being made available to the officialdom of a District for getting undue favours. For verifying the assertions, a sustained interrogation of the petitioner would have to be carried out even before he can be asked to submit to a polygraph (Lie Detection Test). When an intelligent person is armed with the protection from a Judicial court in the shape of an order for anticipatory bail, he is likely to avoid giving straight answers. It is to avoid such a situation, which is most of the times faced by the investigating agency, that the Apex Court had in the case reported as State Represented by the CBI v. Anil Sharma, 1997(4) RCR(Criminal) 268 observed as under :- "We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation orientated than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like (this) effective interrogation of suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible Police Officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders." There cannot be a better case in which the observations of the Apex Court would apply, for in its investigating agency is, on the direction of this Court, seeking to get at the root of the matter with the object of stemming of the rot, which is alleged to be plaguing the officialdom in our society. The petition, in my opinion, does not warrant grant of any relief to the petitioner and is accordingly, dismissed with the observations that if, with a view to get his name cleared the petitioner, who has since been able to avoid his arrest from May, 2003, surrenders at 10.00 A.M. on 23.12.2003 before the Special Magistrate, CBI, Patiala, the said Court would try to dispose of any request for remand that may be made by the police on the same day and in case he is not remanded to police custody, then any application for bail that may be made by the petitioner before the Special Judge, CBI, Patiala, would be decided by the concerned Court by 24.12.2003. On both these dates, to facilitate the disposal of the application, DSP D.C. Sharma, CBI, who is present in Court today, will make himself available before the concerned Court." 3 The petitioner evidently did not comply with the order and instead after a lapse of about three months moved another application before the Sessions Judge, Patiala for anticipatory bail. On both these dates, to facilitate the disposal of the application, DSP D.C. Sharma, CBI, who is present in Court today, will make himself available before the concerned Court." 3 The petitioner evidently did not comply with the order and instead after a lapse of about three months moved another application before the Sessions Judge, Patiala for anticipatory bail. Upon dismissal of the said application vide order dated 20.4.2004, the petitioner has filed the present petition and along with the same had appended an affidavit of Neelam Sidhu respondent No. 2 in which she denied having made allegations against the petitioner and other co-accused before the Chief Judicial Magistrate as well as the Amritsar police and the Central Bureau of Investigation during the initial stages of the investigation. 4. On behalf of the petitioner, Shri O.P. Hoshiarpuri, submitted that in the present case his client is entitled to move a second application for anticipatory bail as the star witness Neelam Sidhu has denied her having made any allegations against the petitioner. 5. On the face of it, the submission appears to be irrefutable but it does not hold good in face of close scrutiny. 6. The first ground on which the argument has to be rejected, is the legal position, which has emerged in Crl. M. No. 28-M of 2000 Dr. P.K. Narang v. State of Punjab, decided on 31.8.2000 and Crl. M. No. 15656-M 2003, Jagjit Singh v. State of Punjab, decided on 12.9.2003 wherein relying upon the view taken by the Calcutta High Court in the case reported as Chanchal Dutta v. State, 2000(1) RCR(Crl.) 356 and Full Bench judgment reported as Maya Rani Guin and etc. v. State of West Bengal, 2003(1) RCR(Crl.) 774 (FB) to the effect that a second application for anticipatory bail is not maintainable, this Court has dismissed the second bail application filed by the petitioner therein. The argument that the position would be different where there is a change of circumstance would hardly apply to a case wherein, as already indicated by me, the petitioner has shown little respect for the process of law and has not only failed to comply with the order passed by this Court on 20.12.2003 but thereafter used all means at his disposal to delay the investigation, which the Central Bureau of Investigation was conducting on the direction of this Court. While there is no doubt that he has been flaunting the affidavit of Neelam Sidhu on the face of the investigating agency since 1.3.2004 and has on the basis of the same sought the quashing of the FIR, which petition had eventually been withdrawn yet in the face of the withdrawal of the petition, the contents of this affidavit can hardly be relied upon without proper verification. Where money power starts its naked dance to mould the course of justice, the investigating agency may be required to independently go into the allegations initially made with a view to judge its veracity and for doing so, it cannot, by any stretch of imagination be held that the requirement of custodial interrogation of the petitioner no longer remains necessary. 7. In a sensitive matter, where a doubt is cast on the functioning of an Institution, one would have expected the investigating agency to take adequate steps for protecting the identity of the witness especially when his/her credibility had been verified by an independent investigation. This was all the more necessary because of the fact that while exposing flaws of society the witnesses were also likely to fall victim of innuendo thrown at them by the so-called respectables of the society. It was in these circumstances that the Investigating Agency should also have been taken steps to provide them a respectable employment opportunity to ensure their rehabilitation and prevent fingers being pointed at them for having taken upon themselves the taks of exposing the hypocrisy of life in a particular section of the business community. No steps, unfortunately, have been taken till this date and instead the witnesses had been left to fend for themselves in a hostile scenario, which has been created by those, who are more powerful. The result being that two attempts have been made to scuttle the investigation by flaunting in Court the affidavit which is alleged to have been sworn by one of the important witnesses. 8. Scratch the surface and view it again, the truth is easily discernible. The case in hand brings into focus a blatant scant respect which the rich and the powerful have for the process of law. 8. Scratch the surface and view it again, the truth is easily discernible. The case in hand brings into focus a blatant scant respect which the rich and the powerful have for the process of law. The petitioner, who did not have courage to challenge the legality and validity of the order passed by this court on 20.12.2003 now by the passing of time seeks to nullify the same by pressuring an important witness into resiling from the statement made by her before judicial functionaries. This also brings into focus the impotence of the approach of the so-called premier investigating agency in not being able to apprehend the petitioner despite the fact that he has not changed the area of his operations and has been moving around with impunity in the open defiance of the might of law. 9. The handing over of the investigation does not mean that the Court wants a successful prosecution, and it should be taken that the handing over of the investigation has been done with a view of guage the truth of the matter and not to start a witch hunt. We would have expected that the sentiments involved would be respected and due priority would have been given to the investigation in order to facilitate immediately any cleansing, if necessary, rather than dragging the feet to make it appear that the investigating agency was doing a cover up job. Normally, in a cognisable offence the investigating agency is required to complete its task within 90 days. The present case may not be that simple so some allowance for protracted investigation may have to be made but the protraction is permissible only to some extent and it may not be permissible for the Courts of law to allow the same to be stretched to a point which creates doubt about the sincerity of the investigating agency, which in turn starts reflecting on the credibility of the Institution, which has ordered the investigation. 10. The learned counsel for respondent No. 1 has tried to attribute this failure to the paucity of man power and facilities, which are available with the agency. 10. The learned counsel for respondent No. 1 has tried to attribute this failure to the paucity of man power and facilities, which are available with the agency. It is unfortunate that a matter, the investigation whereof was handed over to respondent No. 1 by this Court on account of the seriousness of the allegations that had been levelled, appears to have been treated with lack of seriousness both at the level of the immediate investigators as well as the supervisors. 11. I cannot but express my anguish at the disdainful approach adopted by the agency which after a lapse of over a year has not only failed to make any headway in the investigation but has even failed to apprehend the petitioner, who, if actually innocent, definitely deserves a better treatment than what is being meted out to him by the investigators. Since serious allegations were made against the functioning of some of the officers of some of the important pillars of democracy, I would have expected a response as prompt as would have been given by respondent No. 1 in case a murder of a high ranking politician had taken place and the failure of respondent No. 1 to evidence such a response can hardly be made the basis for grant of anticipatory bail to the petitioner especially when he has shown scant respect for the process of law as set into motion by the directions of this Court. If this Court takes any other view, it would encourage such persons to make an attempt to misuse the judicial process in the hope that ultimately they would be able to circumvent it and such a course would be disastrous not only for the adjudicatory process but also for law enforcement agencies. 12. While dismissing this application for anticipatory bail, in view of the great reluctance with which the investigations of the case are being conducted, it may be necessary to request the Director General of Central Bureau of Investigation to look into the matter and see that the same is completed at the earliest so as to ensure that undue protraction of the investigation is avoided as the same only helps the miscreants to cover the tracks which connect them with the mischief alleged to have been committed by them.