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Rajasthan High Court · body

2011 DIGILAW 1429 (RAJ)

Surendra Kumar Sharma v. State of Rajasthan

2011-07-20

BELA M.TRIVEDI

body2011
JUDGMENT 1. - The applicant has preferred the present application seeking his release on bail under Section 439 read with Section 167(2)of Cr.P.C., in respect of the FIR No. being No. 242/10 registered at Police Station ACB, Ajmer for the offence under Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act (hereinafter referred to as "the P.C. Act"). 2. Before dealing with the contentions made by learned advocates for the parties it would be beneficial to narrate certain facts giving rise to the present application. 3. It transpires from the documents on record that the applicant while working as Dy. Manager, (Quality and Control), Rajasthan Cooperative Dairy Federation, Ajmer, was allegedly intercepted by the Addl. Superintendent of Police, ACB, Ajmer on 6.8.2010, when he was about to leave his office and that on the search of his car bearing Registration No. RJ-01-1C-2939, a cash amount of Rs. 1,02,500/- was found in one envelop lying on the desk-board of his car and cash amount of Rs. 6,410/- was found from his purse, for which he could not give satisfactory explanation. It further appears that in respect of the said incident an FIR was registered against him being No. 241/10 for the offence under Section 13(1)(d) read with Section 13(2) of the P.C. Act. It further transpires that on the same day a search was made at residential premises of the applicant at Vaishali Nagar, Housing Board, Ajmer and a cash amount of Rs. 1,15,42,690/- and some FDRs running into lacs of rupees, and also some ornaments worth around Rs. 15 lacs were allegedly found, in respect of which another FIR being No. 242/10 was registered at P.S. ACB, Ajmer for the offence under Section 13(1)(e) read with Section 13(2) of the P.C. Act on 7.8.2010. It is pertinent to note that the applicant was not arrested by the ACB in either of the said two cases at the relevant time. It further transpires that one another case was also registered against the applicant for the offence under Section 17 and 54 of the Excise Act on he having found to have possessed huge quantity of liquor illegally and was arrested in the said case. 4. It further transpires that one another case was also registered against the applicant for the offence under Section 17 and 54 of the Excise Act on he having found to have possessed huge quantity of liquor illegally and was arrested in the said case. 4. It further transpires that when the applicant was in the judicial custody in respect of the said case under the Excise Act, the Investigating Officer had requested the Designated Court, Ajmer to issue search warrant in respect of the bank lockers of the applicant and his family members in connection with the FIR No. 242/10. The court, therefore, by the correspondence dated 11.8.10 directed the Superintendent, Central Jail, Ajmer to keep the applicant present at the time of opening of bank lockers for the investigation of FIR No. 242/10. Accordingly the bank lockers were searched in presence of the applicant and number of incriminating articles including fake currency notes were found from the said lockers, in respect of which separate cases were registered for the offence under Section 489(c) of IPC at various police stations. 5. In the backdrop of the above, it was sought to be submitted by learned advocate Mr. Biri Singh for the applicant that the starting point of limitation for the purpose of Section 167(2) of Cr.P.C. should be the date on which the applicant was available to the police for investigation while in detention under the orders of the court. According to him, in the instant case since the Investigating Officer had sought search warrant in respect of the bank lockers of the applicant during the course of investigation of FIR No. 242/10, when the applicant was in judicial custody in respect of the other case, the applicant should be deemed to be under arrest in the instant case since 11.8.2010, as the designated court had passed the order directing the jail authority to keep the applicant present at the time of opening of bank lockers. He further submitted that since the Investigating Officer had not filed the charge-sheet within the prescribed time limit of 60 days from the date of such deemed arrest, the applicant was entitled to be released on bail in view of Section 167(2) of Cr.P.C. Mr. He further submitted that since the Investigating Officer had not filed the charge-sheet within the prescribed time limit of 60 days from the date of such deemed arrest, the applicant was entitled to be released on bail in view of Section 167(2) of Cr.P.C. Mr. Biri Singh relied upon the judgments of Hon'ble Supreme Court reported in 2010 Cr.L.R. (SC) 254 and 1980 SCC (Criminal) 508 as also the DB judgment of this court in case of Jawahar Singh v. State in DB Cr. Misc. Bail Application No. 3206/1989 , in support of his submissions. 6. However, the learned AAG, Mr. Naqvi taking the court to the application of the Investigating Officer seeking search warrant and the order passed by the designated court, submitted that the applicant was not arrested either in respect of FIR No. 241/10 or 242/10, when the said search warrant was sought from the court. He also submitted that so far as the FIR No. 242/10 is concerned, the Investigating Officer had for the first time requested the designated court to pass the order for the production on 24.12.10 as the applicant was in judicial custody in respect of other case under Excise Act and and the designated court on the applicant having been produced before the court on 3.1.11 pursuant to the said production warrant, had permitted the Addl. Superintendent of Police, ACB, Ajmer to arrest the applicant. Under the circumstances, runs the submission of Mr. Naqvi, the applicant was arrested and detained in custody only on 3.1.11 and subsequently the charge-sheet having been filed on 1.3.2011 i.e. within the period of 60 days of such arrest, it could not be said that the applicant was entitled to be released on bail in view of the provisions contained in Section 167(2) of the Cr.P.C. Mr. Naqvi has relied upon the judgment of Hon'ble Supreme Court reported in Cr.L.R. (SC) 1992, 533 and judgment of this court reported in 2005 (2) Cr.L.R. (Raj.)1464 to buttress his submissions. 7. Having regard to the rival contentions raised by the learned advocates for the parties and the documents on record, it clearly transpires that it is not disputed that the FIR being No. 241/10 was registered on 6.8.2010 and that the charge-sheet in the said case was filed within the prescribed time limit by the Investigating Officer. 7. Having regard to the rival contentions raised by the learned advocates for the parties and the documents on record, it clearly transpires that it is not disputed that the FIR being No. 241/10 was registered on 6.8.2010 and that the charge-sheet in the said case was filed within the prescribed time limit by the Investigating Officer. It is also not disputed that the applicant was arrested in respect of the case filed for the offence under Section 19 and 54 of the Excise Act and was not arrested in either of the cases being FIR No. 241/10 or 242/10, when the application seeking search warrant under Section 93/94 of Cr.P.C. was submitted by the Investigating Officer before the designated court in respect of FIR No. 242/10 and when the court vide order dated 11.8.2010 directed the Superintendent, Central Jail, Ajmer to keep the applicant present at the time of opening of bank lockers for the purpose of investigation in connection with FIR No. 242/10. What was sought to be submitted by Mr. Biri Singh was that since the applicant was already in judicial custody in connection with other case filed against him under the Excise Act, he should be deemed to have been arrested on 11.8.2010 for the purpose of FIR No. 242/10 and that the starting point of limitation would be, therefore 11.8.2010 when the designated court passed the order in view of the application of the Investigating Officer seeking search warrant in FIR No. 242/10. Apart from the fact that the applicant was not arrested either formally or otherwise in connection with the FIR No. 241/10 or 242/10, as on 11.8.2010, it is pertinent to note that the applicant was permitted to be arrested in connection with FIR No. 242 only by designated court as per the specific order dated 3.1.11. The designated court has reproduced the said order dated 3.1.11 in its order dated 17.2.11 while rejecting the application of the applicant seeking his release on bail under Section 167(2) of the Cr.P.C. The said order is also part of the record of the present proceedings. 8. Having regard to the facts and circumstances of the case, in the opinion of the court, the ratio laid down by the Hon'ble Supreme Court in the case of The CBI, New Delhi v. Anupam J. Kulkarni, 1992 Cr. LR (SC) 533 , clinches the issue. 8. Having regard to the facts and circumstances of the case, in the opinion of the court, the ratio laid down by the Hon'ble Supreme Court in the case of The CBI, New Delhi v. Anupam J. Kulkarni, 1992 Cr. LR (SC) 533 , clinches the issue. The Hon'ble Supreme Court while disagreeing with the contention raised by the CBI that the person if arrested in respect of an offence alleged to have been committed by him during an occurrence could be detained again in police custody in respect of another offence committed by him in the same case and which fact comes to light after expiry of the period of 15 days of his arrest, clarified as under:- "However, we must clarify that this limitation shall not apply to a different occurrence in which complicity of the arrested accused is disclosed. That would be a different transaction and if an accused is in judicial custody in connection with one case and to enable the police to complete their investigation of the other case they can require his detention in police custody for the purpose of associating him with the investigation of the other case. In such a situation he must be formally arrested in connection with other case and then obtain the order of the magistrate for detention in police custody." The court further observed as under:- "At this juncture we want to make another aspect clear namely the computation of period of remand. The proviso to Section 167(2) clearly lays down that the total period of detention should not exceed ninety days in cases where the investigation relates to serious offences mentioned therein and sixty days in other cases and if by that time cognizance is not taken on the expiry of the said periods the accused shall be released on bail as mentioned therein. In Chaganti Satyanarayana's case it was held that " It, therefore, stands to reason that the total period of 90 days or 60 days can begin to run from the date of order of remand." Therefore, the first period of detention should be computed from the date of order of remand." 9. In Chaganti Satyanarayana's case it was held that " It, therefore, stands to reason that the total period of 90 days or 60 days can begin to run from the date of order of remand." Therefore, the first period of detention should be computed from the date of order of remand." 9. In view of the settled legal position there remains no shadow of doubt that the Investigating Officer can require detention of the accused in police custody for the purpose of associating him with the investigation of the case, even if the said accused is in judicial custody in connection with the other case and that the period of limitation for the purpose of Section 167(2) of Cr.P.C. would begin to run only from the date of the order of remand in the other case. In the instant case the applicant having been arrested only on 3.1.11 in respect of FIR No. 242/10 as per the order passed by the designated court and the charge-sheet having been filed in the said case on 1.3.11, i.e. within the period of 60 days, the applicant could not be said to be entitled to the benefit of Section 167(2) of Cr.P.C. In that view of the matter the present application deserves to be dismissed and is accordingly dismissed.Application dismissed. *******