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2010 DIGILAW 806 (GAU)

Gegong Apang v. State of Arunachal Pradesh

2010-10-08

A.C.UPADHYAY, I.A.ANSARI

body2010
ORDER I.A. Ansari, J. 1. This is an application, made under Section 439 Code of Criminal Procedure, seeking bail for the accused, namely, Gegong Apang, in connection with the Special Vigilance (T) Case No. 01 of 2010 (Corresponding to SIC/VIG/PS/FIR-08/2005), under Sections 120B/420/468/409 IPC, read with Sections 13(1)(d)(ii) and 13(2) of the Prevention of Corruption Act, 1988. 2. Perused the above application and materials on record. Perused also the relevant case diary as presented by the Investigating Agency along with the status report. 3. Heard Mr. J.M. Choudhury, learned Senior counsel, for the Petitioner, and Mr. I. Choudhury, learned Government Advocate, Arunachal Pradesh. Mr. M.S. Chauhan, Superintendent of Police, who is supavising the investigation is also present and has been heard. 4. The case relates to the alleged large-scale irregularities and corruption in the implementation of Hill Transport Subsidy (in short, 'HTS') scheme and the working of the PDS system during the period 2002-03 and 2003-04. The present composition of the Special Vigilance Cell (hereinafter referred to as 'the SIC) is in terms of the directions passed from time to time, in PIL No. 50 of 2004, by this Court. After submission of the charge sheet in CB Police Station Case Nos. 06/2005 and 08/2005, an order was passed, on 30.08.2007, under Section 407 Code of Criminal Procedure, in PIL No. 50 of 2007. In the PIL, it is made clear that as far as the application for pre-arrest bail is concerned, the same can be considered only by this Court and no Court, subordinate to it. However, as far as the post-arrest bail applications are concerned, the same can be dealt with by the Court of competent jurisdiction. This Registry appears to have, however, issued Notification No. 44, dated 05.09.2007, whereby indicating that all bail applications, in connection with the case Nos. 03/2005. 06/2005, 07/2005 and 08/2005, shall be listed before the Division Bench No. I, at Guwahati, meaning thereby as if even the post arrest bail applications have been stopped from being filed in any Court other than this Court. The Notification No. 44, dated 05.09.2007, aforementioned, obviously includes the present case, namely, 08/2005. The Notification No. 44, dated 05.09.2007, aforementioned, therefore, needs to be looked into, and corrected by, the Registry of this Court by obtaining, if necessary, such further order(s), on the administrative side, from Hon'ble the Chief Justice, as may be required. 5. The Notification No. 44, dated 05.09.2007, aforementioned, obviously includes the present case, namely, 08/2005. The Notification No. 44, dated 05.09.2007, aforementioned, therefore, needs to be looked into, and corrected by, the Registry of this Court by obtaining, if necessary, such further order(s), on the administrative side, from Hon'ble the Chief Justice, as may be required. 5. Coming to the present bail application, it may be pointed out that the charge sheet had already been submitted by the SIC, in the case No. 08 of2005, before the transfer of the cases aforementioned to the Sessions Judge, North Lakhimpur, was ordered. The case has accordingly proceeded. The investigation, which is presently in progress, is really further investigation under Section 173(8) Code of Criminal Procedure. During this investigation, the accused was arrested on 24.08.2008. 6. The submission of the accused, in substance, is that the accused assumed the office of the Chief Minister of the State of Arunachal Pradesh on 30.08.2003 and he was not involved in any kind of misappropriation and/or any other offence(s) relating to HTS and/or distribution of the PDS items. The accused contends that pursuant to the summons issued to him by the SIC, he had appeared, in the office of the SIC, on 20.08.2010, but the Superintendent of Police, SIC, was not in his office and, after having been made to wait for more than two hours, a subordinate officer of the S.P., SIC, gave the accused a written list of 64 questionnaires and asked him to furnish written answers to all the questions. As the list of questions was very long, the accused requested that 10.10.2010 may be fixed for furnishing replies to the questionnaires given to him. It is the case of the accused that he left the office of the S.P., SIC, on being permitted by the officers, subordinate to the S.P., SIC, and when he was expecting that he would have to furnish the reply by 10.10.2010, he was surprised, when he received summons directing him to appear, on 24.08.2010, before the SIC, and while sending the summons, it had been alteged therein that he had not been cooperating with the investigation. The accused claims that he promptly denied, by issuing a letter, in this regard that he had not been cooperating with the investigation and he also manis it clear, in his letter, that he had been allowed to leave the office of the SIC by the subordinate officers of the SP, SIC, after he had been furnished with the questionnaires. Be that as it may, the accused submits that he appeared before the SP, SIC, on 24.08.2010, in terms of the summons issued to him and he was taken into custody by the SIC in connection with the present case. 7. The fact that the accused was arrested, on 24.08.2010, is not in dispute. What we are, now, required to decide, in the present application, is whether, in the facts and attending circumstances of the present case, the accused needs to be allowed to go on bail. 8. Appearing on behalf of the accused, Mr. J.M. Choudhury, learned Senior Counsel, has submitted that the accused is and old man, aged about 70 years, he is a type II diabetic patient and since the time of his arrest, he had to be constantly under medical supervision, for, his blood pressure and sugar level are constantly fluctuating. In this regard, the accused has also submitted in his application that around two mondis back, he (the accused) had collapsed at a public function, at Likabali in West Siang District and had to be rushed to the hospital for emergency treatment. His physical condition, according to Mr. Choudhury, warrants his release on bail so that he can receive proper medical treatment This apart, according to Mr. Choudhury, the accused has been interrogated on 06.09.2010, 15.09.2010and, then, again, on 29.09.2010, Mr. Chodhury submits that the allegations made against the accused rest on documentary materials and there is no scope of the accused absconding or interfering with the investigation of the case, the accused is prepared to abide by any such condition or conditions as may be imposed by the Court and having already remained in custody since 24.08.2010, he needs to be allowed to go on bail and if further investigations of the case requires his further interrogation, the accused is willing to cooperate by making himself available for such interrogation. In the facts and circumstances of the present case, Mr. In the facts and circumstances of the present case, Mr. Choudhury, contends that the custodial interrogation of the accused is not warranted in the present case, when he can be interrogated at any point of time, whenever the SIC requires, provided that the health condition of the accused makes such interrogation possible. 9. Mr. Chauhan, SP, SIC, who is supervising the investigation, has submitted that, on being arrested, the accused was produced before the learned Sessions Judge, North Lakhimpur, and on being allowed to have his custody for a period of one week, when the investigating team returned to Itanagar and re^hed R.K. Mission Hospital so that the accused could be medically examined, a large number of officers of the State Government and members of the public assembled there and did not permit interrogation of the accused. Mr. Chauhan also submits that the SIC did not have sufficient time to interrogate the accused and that in the light of the evidence, which are forthcoming, his custodial interrogation is necessarily. 10. As far as Mr. I. Choudhury, learned counsel, is concerned, he has merely produced the copies of three orders passed in the PIL, which contain the directions given by the High Court as regards the composition of the SIC, its working and transfer of the cases, under Section 407 Code of Criminal Procedure, to the Sessions Judge, North Lakhimpur. 11. We may, now, indicate that the application for bail was considered by the High Court and by order, dated 30.09.2010, the prayer for bail, made by the accused, stands rejected. 12. We find that the resistance to the bail application has, now, been offered on the ground that the accused has not been fully interrogated, his custodial interrogation is necessarily and he, being a person, who had, at one point of time, been occupying the office of the Chief Minister of the State, is an influential person and his liberty on bail would influence further investigation of the case. 13. On the basis of the submissions made by the SP, SIC, we have perused the report submitted to us and also the relevant case diary, as presented before us. 14. At the stage of consideration of the bail, we would not like to make such comments, which may have bearing on further investigation of the case. 13. On the basis of the submissions made by the SP, SIC, we have perused the report submitted to us and also the relevant case diary, as presented before us. 14. At the stage of consideration of the bail, we would not like to make such comments, which may have bearing on further investigation of the case. We must, however, point out that whatever has been produced before this Court, the same have been perused and the perusal thereof reveals some incriminating materials against the accused in the sense that there are exculpatory statements made by some persons, who are co-accused in the present case, and information and documents, which the SIC has. 15. The question, therefore, is whether, in the facts and circumstances of the present case, the accused can be allowed to go on bail? In this regard, one has no option, but to fall back upon and scrutinize the case diary. We find that the case diary has not been maintained in accordance with law. What has been presented before this Court, m the form of a case diary, is really a collection of loose sheets of papers, where the progress of the case has been, intermittently, noted, mostly, by typing on computers and, at times, by hand. It is difficult to treat the materials, presented in the form of case diary, as the case diary of a criminal case, as envisaged by law, police manual and executive instructions inasmuch as the case diary, which we have been given, does not contain contemporious records nor is it a bound book with printed pagination. Article 21 of the Constitution guarantees fair trial and a fair trial will also mean speedier and fair investigation. The pace of investigation, in the present case, what we have noticed, is not satisfactory, though a team of officers has been investigating the case. Because of the fact that the case diary is a collection of loose sheets of papers, which can be changed and re-changed and not a binding book, with pagination, as is warranted by law, we are of the view that the manner in which the investigation is being conducted and the case diary is being maintained can be due to ignorance or deliberate. If it is ignorance, the ignorance would mean not a fair investigation in accordance with law and if it is deliberate, it would be manipulative. If it is ignorance, the ignorance would mean not a fair investigation in accordance with law and if it is deliberate, it would be manipulative. Either way, therefore, improvement in the standard of investigation and possibilities of abuse of powers by manipulation of case diary are imperative, especially, when the progress of the case is being monitored by a Special Branch of the High Court. 16. Though it has been alleged, orally, before this Court that the accused could not be interrogated on 24.08.2010, when he was given into public custody by the learned Sessions Judge, North Lakhimpur, because of the interference by officers of the State Government and the people, who had assembled at the hospital, at Itanagar, where the accused had been taken for the purpose of his medical examination, the case diary, presented before us, bears no such remark. On a query made by us, the SP, SIC, admits that until the time the application for bail was taken up for consideration, he never informed the learned Sessions Judge and/or this Court that hindrance was being caused in the way of interrogation of the accused. 17. We notice, as the case diary reveals, that it was not on the request of the accused that he (i.e., the accused) was taken to R.K. Mission Hospital by the Investigating Agency. The accused was remanded into police custody, initially, for a period of seven days and it was subsequently extended by a period of another seven days. Though from the case diary presented before us, we find that the accused remained mostly in the hospital, he had, indeed, been interrogated. After the High Court rejected, on 13.09.2010, the prayer for bail of the either on 29.08.2010 accused, the accused was interrogated twice, namely, on 15.09.2010 and 29.09.2010. We do not find that the Investigating Officer, while concluding the interrogation for the day, or on 15.09.2010, recorded that the interrogation of the accused had remained incomplete. 18. Ordinarily, an accused is entitled to bail and if he has to be kept in custody for the purpose of interrogation, there must be material available in the case diary to show that effective interrogation would require custodial interrogation. The inference that effective interrogation, in a given case, requires custodial interrogation must be drawable by a Court from the materials collected and presented through the case diary. The inference that effective interrogation, in a given case, requires custodial interrogation must be drawable by a Court from the materials collected and presented through the case diary. In the case at hand, we do not find any such material reflected from the case diary. 19. In fact, at one stage of the hearing, the SP, SIC, admits that the case, against the accused, depends on documentary materials. Moreover, we notice that as many as 96 persons are accused, in the case at hand, including the present accused person, namely, Gegong Apang. Out of these 96 accused persons, 14 persons are said to have been arrested. All these arrested persons have been released either on the same day or within 4/5 days, including those persons, whose statements are sought to be relied upon by the prosecution, in the present case, as persons, visio had allegedly either paid money to the present accused or collected money on his behalf from contractors/suppliers. 20. Though it is alleged that the accused, having occupied the office of the Chief Minister of the State for a long time, can interfere with the investigation, the feet remains that the likelihood of interference with investigation by an accused has to be demonstrated by, and must be revealed from, the case diary. When the accused has remained in custody for more than six weeks and during this period, when not only the accused, but other accused persons have been interrogated, the case diary must reveal the likelihood of the liberty of the accused adversely affecting further investigation of the case. No witness, in the present case, is alleged to have turned hostile. In fact, the case diary reveals that even after the arrest of the accused, some of the persons, who are also accused and whose statements are sought to be ruled upon by the prosecution, were reexamined in the light of what the accused is alleged to have stated in denial of his involvement in any case of misappropriation or bribery, but the persons aforementioned (i.e., the co-accused) have stuck to their respective previous statements. In the absence of any material showing that the liberty of the accused will help him tamper with the investigation, the apprehension, expressed, on behalf of the SIC, that the accused is likely to tamper with the investigation, cannot be readily accepted. In the absence of any material showing that the liberty of the accused will help him tamper with the investigation, the apprehension, expressed, on behalf of the SIC, that the accused is likely to tamper with the investigation, cannot be readily accepted. If such an occasion arises, nothing stops this Court or any other Court of competent jurisdiction from cancelling the bail of the accused. A person, on bail, does not have licence to interfere with the investigation or tamper with the witnesses. 21. Coupled with what have been mentioned above, we also notice that the accused has been under medical treatment. We do not find that the state of health of the accused is such that he cannot be kept in detention at all, for, if required, the accused can be shifted to hospitals/institutions, where proper specialization and facilities for his treatment can be provided by the State, while keeping the accused in detention. 22. We, therefore, do not fine that solely on the ground of health or age of the accused, the accused can be granted bail. Notwithstanding the fact that the accused may not have a case for being granted bail on the ground of his sickness alone, the fact remains that we have minutely scanned the case diary and we do not find the requirement or necessity of keeping the accused, in custody, for the purpose of interrogation nor do we find any materials collected, far less credible, in the case diary, reflecting or demonstrating that the liberty of the accused would influence further course of action. Though there may be a case for further investigation of the case, but the detention of the accused not being warranted in the facts and attending circumstances of the present case, we are of the view that the accused needs to be enlarged on conditional bail, particularly, when it is not even alleged before us that the accused is likely to abscond. 23. Considering, therefore, the matter in its entirety and in the interest of justice, we hereby direct that the accused be released on bail of Rs. 25,000/- with two sureties, each of the like amount, subject to the satisfaction of the learned Sessions Judge, North Lakhimpur. 23. Considering, therefore, the matter in its entirety and in the interest of justice, we hereby direct that the accused be released on bail of Rs. 25,000/- with two sureties, each of the like amount, subject to the satisfaction of the learned Sessions Judge, North Lakhimpur. This direction for bail is further subject to the condition that the accused shall not leave the State of Arunachal Pradesh without prior information to, and leave of, the Sessions Judge, North Lakhimpur, even for the purpose of his medical treatment. This direction for bail is further subject to the condition that the accused shall not, directly or indirectly, contact or try to influence any one acquainted with the facts of the case. This apart, the accused shall make himself available, for interrogation at all reasonable time and any violation of the conditions, which we have imposed, may lead to cancellation of his bail. The SP, SIC, shall remain at liberty to apply for cancellation of bail if such a situation arises and if it is found that the accused has not made himself available for interrogation by police. 24. The above directions for bail shall remain in force for a period of 8 (eight) weeks from today and, thereafter, the accused may apply for extension of his bail in the Court of learned Sessions Judge, North Lakhimpur. These conditional directions have been given by us in order to ensure effective investigation of the case, while, at the same time, ensuring that the liberty of the accused is not curtailed beyond what is imperative and necessitated by the facts of the present case. 25. Before parting with the bail application, there is yet another material aspect to which we feel constrained to refer to. We find that the case, in question, has been registered, apart from the penal provisions embodied in the Indian Penal Code, under the penal provisions of the Prevention of Corruption Act, 1988 (in short, 'PC Act'). A criminal Court of ordinary jurisdiction cannot try an offence punishable under the PC Act, whereas a Special Judge, appointed under the PC Act; while trying an accused for offence(s) under the PC Act, can try him for offence(s) under the IPC as well. 26. A criminal Court of ordinary jurisdiction cannot try an offence punishable under the PC Act, whereas a Special Judge, appointed under the PC Act; while trying an accused for offence(s) under the PC Act, can try him for offence(s) under the IPC as well. 26. In the case at hand, in the light of the provisions of Section 3 of the PC Act, a Special Judge can be appointed either by the Central Government or State Government by notification in the official gazette. In a given case, the High Court may, perhaps, direct constitution of such a Court, or appointment of a Special Judge, but we are prima facie of the view that the High Court does not have the power to appoint a Special Judge under the PC Act. Though the High Court may transfer a case, under Section 407 Code of Criminal Procedure, from one Court to another, the Court to which a case is transferred must have the jurisdiction to try an accused of the offence(s) for which his trial is sought. The scheme of transfer, embodied in Code of Criminal Procedure, prima facie reflects that while the Supreme Court exercises power of transfer under Section 406 Code of Criminal Procedure, the High Courts' power to transfer cases and appeals is traceable to Section 407 Code of Criminal Procedure. 27. In the case of A.R. Antulay v. R.S. Nayak and Anr. reported in 1988 SCC 572 , the Supreme Court had transferred the case against the accused, Antulay (which required its trial under the penal provisions of PC Act, 1952), to a Judge of the Bombay High Court and accordingly the trial proceeded. In course of time, the trial came to be challenged before the Supreme Court. There were two important aspects of the case. In course of time, the trial came to be challenged before the Supreme Court. There were two important aspects of the case. One important aspect was that when the trial of an offence under the PC Act requires appointment of a Special Judge either by the Central Government or by the State Government, whether transfer of trial to a Judge, who has not been appointed under the PC Act, as Special Judge, even if such judge is a High Court Judge, is legally sustainable, Yet another material aspect of the case was either by way of transfer, the accused had been denied or denuded of his right to prefer his appeal to the High Court against his conviction, should he come to be convicted by a Judge of the High Court. Dealing with the case, the majority, in Antulay (supra), speaking through Sabyasachi Mukharji, J (as his Lordship then was), observed, at para 28, as under: 28. It is obvious that if a case could be transferred under Section 406 of the Code from a Special Judge it could only be transferred to another Special Judge or a Court of superior jurisdiction but subordinate to the High Court. No such Court exists. Therefore, under this section the power of transfer can be from one Special Judge to another Special Judge. Under Section 407 however, corresponding to Section 526 of the old Code, it was submitted the High Court has power to transfer any case to itself for being tried by it. 28. What follows from the above is that transfer of a case may dispense with the requirement of a Court having territorial jurisdiction, but the statutory pre-conditions for exercise of jurisdiction can not be taken away, or dispensed with, by way of transfer. There is, as we are informed, no order from the Central or State Government appointing, in terms of Section 3 of the PC Act, the Sessions Judge, North Lakhimpur, as the Special Judge under the PC Act. In such circumstances, trial of the accused may, we are afraid, be without jurisdiction. This part, the State Government cannot appoint Special Judge beyond the territorial limits of its own jurisdiction. In such circumstances, trial of the accused may, we are afraid, be without jurisdiction. This part, the State Government cannot appoint Special Judge beyond the territorial limits of its own jurisdiction. In the case at hand, since the case has arisen within the territorial limits of the State of Arunachal Pradesh, the Government of Arunachal Pradesh cannot appoint Special Judge outside its territorial limits for the purpose of trial of offence or offences under the PC Act. If the prosecution is allowed to erect the edifice of its case on the fractured legs, the edifice may fall. It is, therefore, necessary that this is an aspect of the matter, which, very respectfully, be brought to the notice of the Bench, which has been constituted for the purpose of dealing with the PIL No. 50 of 2004 so that the error, if any, can be rectified. This we do with the utmost humility and with greatest respect. 29. Before parting with this application, it is made clear that what we have observed with regard to the state of investigation or with regard to the maintenance of case diary are not directed against any individual or specific officer, but to the state of affairs, governing the case, in general. 30. With the above observations and directions, this bail application shall stand disposed of. 31. Let the case diary, produced by the SP, SIC, be returned. Application disposed of.