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2015 DIGILAW 1056 (KAR)

Rajan v. State of Karnataka

2015-09-07

L.NARAYANA SWAMY

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ORDER : L. Narayana Swamy, J. 1. The complainant who is a Police Officer conducted mahazar on 30th April, 2015 and has taken possession of some of the materials from the residence of the petitioner who is the sole accused in this case and thereafter registered a case in Crime No. 64 of 2015 on the file of the Excise Enforcement and Lottery Prohibition Wing, KGF, for the offence punishable under Sections 120-B, 188, 420 and 34 of Indian Penal Code, 1860 and Sections 5 and 7 of Lotteries (Regulation) Act, 1998. The Excise and Lottery Prohibition Wing, also a Police for the purpose of investigation, completed the investigation and filed charge-sheet. Thereafter, the State Government handed over the case to the CBI on 28-5-2015 and consequently, case has been registered as RC No. 08(S)/2015/CBI/SC-1/New Delhi. The learned Counsel for the petitioner files this application under Section 439 of Criminal Procedure Code, 1973 for grant of bail for the following reasons, namely: 2. Firstly the case was registered on the basis of a sting operation made by a TV channel on March 6th and 7th 2015. Thereafter, till 1-5-2015 investigation of the case has been done and the delay in investigation is forthcoming from the investigation papers. Secondly, the person who has made mahazar on 30-4-2015 and registered the case himself is the Investigation Officer. Sanction under Section 165 of Cr.P.C. for the purpose of conducting raid has not been obtained, since the case itself was not registered on that day. The Police Officer who conducted the raid himself is the complainant and his version has been taken for the purpose of Section 154 of Cr.P.C. Since there is an inbuilt defect in the complaint and the complainant himself is an Investigating Officer and no sanction was obtained and however since investigation is completed and charge-sheet is filed on 29-6-2015, the presence of the petitioner is not required for any purpose. Under these circumstances, this petitioner has to be granted the benefit of bail. 3. From the charge-sheet, the learned Counsel submitted that the offence committed is under Sections 5 and 7 of the Lottery Prohibition Act and as per Section 7, even if it is committed, punishment would be two years. Under these circumstances, this petitioner has to be granted the benefit of bail. 3. From the charge-sheet, the learned Counsel submitted that the offence committed is under Sections 5 and 7 of the Lottery Prohibition Act and as per Section 7, even if it is committed, punishment would be two years. Secondly, it is submitted, the mahazar, if it is conducted by the Police - complainant and he has recovered and found possession of Sikkim lottery, it is an offence committed under Section 7 and trading, selling, etc., if it is committed and proved, then also it is an offence under Section 7 of the Lottery Prohibition Act. The case of the prosecution is, several lottery tickets were found in the possession and possession itself is not an offence punishable under Section 7 of the Lottery Prohibition Act. On this ground also, the petitioner has to be granted bail and the other offence which is referred is triable by the Magistrate and even if he is convicted, he is not punishable with life imprisonment. Under these circumstances, petition has to be allowed. 4. The learned Counsel for the CBI submitted to dismiss this petition. He filed statement of objections. Ground for dismissal is that, after the registration of the case on 10-8-2015, the bail petition should have been filed before the Special Court and without doing so, directly approached this Court, which is impermissible. On this ground alone, the petition is liable to be dismissed. 5. Considering the magnitude of the offence and the alleged involvement of certain senior public servants - top Police Officers, a notification has been issued by the Government of Karnataka for handing over the case to the CBI and as it is indicated in the notification, several top brass Police are involved and in order to carry out effective investigation, petitioner is required for interrogation. If the petition is considered and allowed, the respondent will not be in a position to carry out effective investigation, since the top brass Police Officers are involved in the case. The sum and substance is that thousands of crores of rupees is involved and it is a biggest scam involving the petitioner and several top Police Officials. This has to be gone into by the CBI. On this ground also, petition is liable to be rejected. 6. I heard both the parties. 7. The sum and substance is that thousands of crores of rupees is involved and it is a biggest scam involving the petitioner and several top Police Officials. This has to be gone into by the CBI. On this ground also, petition is liable to be rejected. 6. I heard both the parties. 7. Mere filing of charge-sheet itself is not a deciding factor to release a person on bail. The other factors namely, the petitioner has committed an offence prima facie against the society and the State and chances of the petitioner tampering with the witnesses, etc. are to be looked into. From the materials available, namely the charge-sheet, nothing is found that the petitioner could tamper the witnesses, since the complainant himself is a Police Officer who also investigated into the matter and since the materials have been collected from the residence on 30-4-2015, it is found that all the materials are in possession of the Investigation Officer. Hence, chances of tampering with the material witnesses also does not arise. The judgment referred by the petitioner in Vipul Shital Prasad Agarwal v. State of Gujarat and Another, AIR 2013 SC 73 , (2013) 1 SCC 197 , 2013 Cri. L.J. 336 (SC), (2013) 2 SCC (Cri.) 475 to the effect that, if investigation is completed or during investigation, if the case is to be handed over to the CBI and there is nothing to further investigate it cannot be termed as a fresh case. The said case is squarely applicable to the present case. Handing over the case to the CBI on 10-8-2015 itself has to be treated in the light of the Supreme Court judgment as a further investigation. 8. The submission of the CBI that on the notification issued by the State Government, the investigation of the case has been entrusted to the CBI and it is found from the available papers and materials on record that the petitioner who is a kingpin in the entire case has defrauded the society in terms of thousands of crores of rupees, in which other top Police Officers are also involved. Further it is stated, when such being the case if the petitioner is released on bail, he may not be easily available for interrogation and great hardship and inconvenience would be caused in the further investigation of the matter. 9. Further it is stated, when such being the case if the petitioner is released on bail, he may not be easily available for interrogation and great hardship and inconvenience would be caused in the further investigation of the matter. 9. In the light of the submissions made, what is required to be noted is, huge amount of money has been defrauded. That has also been fortified by the investigation and charge-sheet filed by the State Police. But in the submission of the respondent, whether other top Police Officers are involved in the instant case has to be considered with all seriousness. 10. I have also ascertained from the respondent that if the petitioner is directed to be made himself available for investigation on all the dates till the charge-sheet is filed, the answer would be it is the person who is carrying out the investigation who has to decide and it cannot be restricted to some conditions. By looking at the veracity of the case and also the huge amount involved and the fact that many top Police Officers are involved in the case, in the best interest of the State and Society, I deem it fit to dismiss this petition. However, liberty is reserved to the petitioner to file a petition after filing of the charge-sheet by the CBI. Ordered accordingly.