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2020 DIGILAW 840 (TS)

Syed Muqtar Afi v. State of Telangana

2020-12-07

KUNURU LAKSHMAN

body2020
ORDER : Kunuru Lakshman, J. 1. This petition is filed under Sections 437 and 439 of the Code of Criminal Procedure, 1973 (for short, 'CrPC) by the petitioner/sole accused seeking to grant regular bail in Cr. No. 108 of 2020 pending on the file of the Station House Officer, CCS, DD, Division-I, Hyderabad, registered for the offences under Sections 406, 420 and 506 IPC, and under Section 5 of the Telangana State Protection of Depositors of Financial Establishments Act, 1999(for short, 'the Act'). 2. Heard Sri. Komireddy Karam Chand, learned counsel for the petitioner and learned Public Prosecutor. Perused the record. 3. The complaint dated 29.08.2020 and the remand report dated 02.10.2020 would reveal that the accused has collected money from the investors including the defacto-complainant and used the said money to develop his business in the name and style of 'Tijarah Stock Investments'. Later he attracted the investors and influenced them to deposit money in his business for getting huge profits. He has induced the investors by offering profit of Rs. 3,000/- to Rs. 3,500/- per month on every one lakh. Later he failed to return money as promised by him. As such, the petitioner herein has committed the offence under Sections 406, 420 and 506 IPC and also Section 5 of the Act. 4. The learned counsel for the petitioner would submit that the petitioner is not an accused and he is a victim. One Yasin Bee has lodged a complaint against the de facto complainant making allegations against him and, therefore, as per the said complaint, the de facto complainant in the present crime i.e., Riyaz-Ur-Rahman is the main accused and with a view to save himself, he has falsely implicated the petitioner herein as accused. He would further submit that the police have already taken the custody of the accused pursuant to the order dated 13.10.2020 vide Electronic Crl. M.P. No. 661 of 2020 and his custodial interrogation from 10.00 a.m. of 14.10.2020 a.m. to 4.00 p.m. of 15.10.2020 was over. Thus, the police have completed the investigation. Therefore, the petitioner is entitled for regular bail. In support of the same, he has filed copies of letter dated 23.11.2020 of the Inspector of Police, Habeebnagar Police Station, complaint of Yasin Bee and order in Crl. M.P. No. 661 of 2020. Thus, the police have completed the investigation. Therefore, the petitioner is entitled for regular bail. In support of the same, he has filed copies of letter dated 23.11.2020 of the Inspector of Police, Habeebnagar Police Station, complaint of Yasin Bee and order in Crl. M.P. No. 661 of 2020. Without considering the same, the Police, Banjara Hills, Habeeb Nagar and CCS, have registered crimes without following the guidelines issued by the Hon'ble Apex Court in Lalita Kumari Vs. State of Utter Pradesh (2014) 2 SCC 1 more particularly without conducting preliminary enquiry. 5. In the complaint, dated 29.08.2020 and also in the remand report, dated 02.10.2020, it is specifically mentioned the details of the investment and the amount invested. It is also mentioned about the promise made by the petitioner herein with regard to the payment of Rs. 3,000/- to Rs. 3,500/- per month on every one lakh. In the complaint, dated 29.08.2020, the names of the 26 investors/victims have specifically mentioned including the amount deposited. 6. Learned Public Prosecutor has filed copies of statements of victims recorded under Section 161 Cr.P.C. In all the statements, the victims have specifically mentioned about the promise made by the petitioner with regard to giving of profit from Rs. 3,000/- to Rs. 3,500/- per month on every one lakh. The petitioner herein has executed business deeds with the investors. The amount, ID Numbers, Demat account numbers and the investments made are specifically mentioned. All the victims have also stated that the petitioner herein has made them to believe that he is going to run business under the name and style 'Tijarah Stock Investments' and further stated that he is going to deal in share market as Advisor and consultant of the share market. Believing his version, all the victims have invested huge money. The amount invested and the profit assured by the petitioner is also specifically mentioned in the statements recorded under Section 161 CrPC by the Police. 7. Learned Public Prosecutor, on instructions, would submit that the petitioner is not cooperating with the Investigating Officer and he furnished the details of the investors/victims. Learned Public Prosecutor would further submit that the petitioner is not disclosing the details of the funds collected by him and the properties purchased by him by diverting said funds. The said aspects have to be investigated into by the Investigating Officer. 8. Learned Public Prosecutor would further submit that the petitioner is not disclosing the details of the funds collected by him and the properties purchased by him by diverting said funds. The said aspects have to be investigated into by the Investigating Officer. 8. With the said contentions, the learned Public Prosecutor sought to dismiss the petition. 9. Learned counsel for the petitioner would submit that the Police have arrested the petitioner herein on 02.10.2020 and even then the Investigating Officer has not completed investigation within the time stipulated under Section 167 CrPC and therefore, the petitioner is entitled for statutory bail in accordance with Section 167(2)(a)(ii) of CrPC. 10. Learned counsel for the petitioner has also placed reliance on the principle laid down by the Hon'ble Apex Court in Rakesh Kumar Paul Vs. State of Assam (2017) 15 SCC 67 . 11. On the other hand, learned Public Prosecutor would submit that the petitioner herein has involved in several cases. He has cheated the victims to a tune of Rs. 2.38 Crores and the Police have already recorded the statements of 21 witnesses and they have to record the statements of some more witnesses. They are also trying to collect the evidence including the business deeds. The offence committed by the petitioner is an economic offence and he has cheated several victims/investors. He is an influential person and there is every possibility of interference of the petitioner in the investigation in the event of consideration of his bail application. Therefore with the said contentions, the learned Pubic Prosecutor sought to dismiss the petition. 12. The above stated facts would reveal that the petitioner has collected amounts from the victims/investors by promising them to give profit of Rs. 3,000/- to Rs. 3,500/- on every one lakh. The amount of investment and names of the investors is specifically mentioned in the tabular form of complaint, dated 29.08.2020. In the remand report also, it is specifically mentioned that during the course of investigation, the Investigating Officer has collected the business deeds from some of the victims and also recorded statements of 21 witnesses. According to the prosecution, the petitioner herein has lured an amount of Rs. 2.38 Crores from the victims in all. Investigation is pending. The Police have to recover proceeds of the crime. The Investigating Officer is collecting evidence and he has to record the statements of some more witnesses. 13. According to the prosecution, the petitioner herein has lured an amount of Rs. 2.38 Crores from the victims in all. Investigation is pending. The Police have to recover proceeds of the crime. The Investigating Officer is collecting evidence and he has to record the statements of some more witnesses. 13. Punishment prescribed for the offence under Section 420 IPC is 7 years and fine and for Section 406 IPC is 3 years or fine or both and the punishment for the offence under Section 5 of the Act, is with imprisonment for a term which may extend to 10 years and with fine which may extend to rupees one lakh and such financial establishment shall also be liable for fine which may extend to rupees five lakhs. 14. Learned counsel for the petitioner by referring to the said punishment would submit that the punishment for the offence under Section 5 of the Act, the minimum punishment is not prescribed and the trial Court may impose sentence which may extend up to 10 years. 15. In Rakesh Kumar Paul supra, the Apex Court by referring to its earlier judgment in Rajeev Chaudhary Vs. State (NCT) of Delhi 2001 5 SCC 34 , held that "to contend that 'not less than' 10 years imprisonment must mean a minimum of 10 years imprisonment. In that decision, the offence was punishable under section 386 of the IPC which provides that an accused, if found guilty, shall be punished with imprisonment for a term 'which may extend to 10 years'. This Court contrasted that expression with the words 'not less than' occurring in Clause (i) to proviso (a) of Section 167(2) of the CrPC. Juxtaposing the two expressions, this Court concluded that the words 'not less than' in Clause (i) would mean that the imprisonment should be 10 years or more and would cover only those offences for which punishment of imprisonment could be for a clear period of 10 years or more. It was held in paragraph 6 of the Report. 16. In Rajeev Chaudhary supra, it was held that from the relevant part of the offences alleged, it is apparent that pending investigation relating to an offence punishable for imprisonment for a term 'not less than 10 years', the Magistrate is empowered to authorise the detention of the accused in custody for not more than 90 days. 16. In Rajeev Chaudhary supra, it was held that from the relevant part of the offences alleged, it is apparent that pending investigation relating to an offence punishable for imprisonment for a term 'not less than 10 years', the Magistrate is empowered to authorise the detention of the accused in custody for not more than 90 days. For rest of the offences, period prescribed is 60 days. Hence in cases, where offence is punishable with imprisonment for 10 years or more, accused could be detained up to a period of 90 days. In this context, the expression 'not less than' would mean imprisonment should be 10 years or more and would cover only those offences for which punishment could be imprisonment for a clear period of 10 years or more. Under Section 386 punishment provided is imprisonment of either description for a term which may extend to 10 years and also fine. That means, imprisonment can be for a clear period of 10 years or less. Hence, it could not be said that minimum sentence would be 10 years or more. Further, in context also if we consider clause (i) of proviso (a) to Section 167(2), it would be applicable in case where investigation relates to an offence punishable (1) with death; (2) imprisonment for life; and (3) imprisonment for a term of not less than ten years. It would not cover the offence for which punishment could be imprisonment for less than 10 years. Under Section 386 of the IPC, imprisonment can vary from minimum to maximum of 10 years and it cannot be said that imprisonment prescribed is not less than 10 years. 17. In the said judgment, the Hon'ble Apex Court has also referred the principle laid down in Bhupinder Singh Vs. Jarnail Singh (2006) 6 SCC 277 which is concerned with an offence under Section 304-B of IPC where the punishment prescribed is not less than 7 years but which may extend to imprisonment for life. The punishment range or punishable range are available to a sentencing judge varied from not less than 7 years extending to life imprisonment. Keeping the same in mind, it was noted that what is the adequate punishment in a given case would be decided by the Court on the basis of facts and circumstances before it. The punishment range or punishable range are available to a sentencing judge varied from not less than 7 years extending to life imprisonment. Keeping the same in mind, it was noted that what is the adequate punishment in a given case would be decided by the Court on the basis of facts and circumstances before it. In Bhupinder singh supra, the Apex Court by referring the principle laid by it in Rajeev Chaudhary supra, distinguished and held related to an offence punishable under Section 386 of IPC and the sentence in respect of the said offence is not less than 10 years. This Court held that the expression "not less than" means that the imprisonment should be 10 years or more to attract 90 days period. In that context, it was said that for the purpose of clause-i of proviso-a of Section 167 (2) of Cr.P.C., the imprisonment should be for a clear period of 10 years or more. 18. By referring the above said two views expressed by it, the Hon'ble Apex Court accepted the view taken by it in Rajeev Chaudhary supra. 19. In the said decision, the Hon'ble Apex Court also had an occasion to deal with the default bail or an indefeasible right and held that the indefeasible right for default bail would accrue to the petitioner when the period of 60 days for completing the investigation and filing a charge sheet came to an end on 3rd or 4th January, 2017 and that the indefeasible right continue till 24.01.2017. The question is whether during this interregnum, the petitioner was entitled to 'default bail' or not?. Ordinarily, the answer would be 'yes' but in the present case, the petitioner was not granted bail and a charge sheet was filed against him on 24th January, 2017. 20. The Hon'ble Apex Court relying upon the principle laid down in Sanjay Dutt Vs. State (1994) 5 SCC 410 and also Hitendra Vishnu Thakur Vs. State of Maharashtra (1994) 4 SCC 602 and other judgments held if the charge sheet is not filed and the right for default bail has ripen into the status of indefeasibility, it cannot be frustrated by the prosecution on any pretext. State (1994) 5 SCC 410 and also Hitendra Vishnu Thakur Vs. State of Maharashtra (1994) 4 SCC 602 and other judgments held if the charge sheet is not filed and the right for default bail has ripen into the status of indefeasibility, it cannot be frustrated by the prosecution on any pretext. The accused can avail his liberty by filing an application stating that the statutory period for filing the charge sheet or challan has expired and the same has not yet been filed and therefore, indefeasible right has accrued in his or her favour and further the accused is prepared to furnish the bail bond. 21. In Rakesh Kumar Paul supra, the Hon'ble Apex Court has also discussed about the procedure for obtaining default bail, duty of the Courts and on facts of the said case held that the petitioner therein is entitled to the grant of default bail on the facts and in the circumstances of the said case and directed the trial Judge to release the petitioner therein on default bail on such terms and conditions as may be reasonable. The Apex Court made it clear that the said order does not prohibit or otherwise prevent the arrest or re-arrest of the petitioner on cogent grounds in respect of the subject charge and upon arrest or re-arrest, the petitioner therein is entitled to petition for grant of regular bail which should be considered on its own merits and the said order will not impact on the arrest of the petitioner in any other case. 22. In S. Kasi Vs. State through the Inspector of Police, Samaynallur Police Station, Madhurai district 2020 (2) ALD Crl. 725, the Hon'ble Apex Court discussed about the scope and ambit of Section 167(2) of Cr.P.C. and also the order dated 23.03.2020 passed by it in a suo-moto writ petition considering the Covid-19, a pandemic situation, and held that the appellant therein be released on default bail on certain conditions. 23. In another judgment, in the case of M. Ravinder Vs. 23. In another judgment, in the case of M. Ravinder Vs. Intelligence Officer, decided on 26.10.2020 in Appeal No. 699 of 2020 (arising out of SLP (Criminal) No. 2333 of 2020) discussed the scope and ambit of Section 167 (2) of Cr.P.C., the indefeasible right accruing to an accused under Section 167 Cr.P.C. and by referring the principle laid down by it in various judgments, held as under: (a) once the accused files an application for bail under the provision to Section 167(2) of Cr.P.C., he is deemed to have availed of or enforced his right to be relapsed on default bail, accruing after expiry of the stipulated time limit for investigation. Thus, if the accused applies for bail under Section 167(2) of Cr.P.C. the Court must release him on bail forthwith without any unnecessary delay after getting necessary information from the Public Prosecutor. Such prompt action will restrict the prosecution from frustrating the legislative mandate or to release the accused on bail in case of default by the investigating agency. (b) The right to be released on default bail continues to remain unenforceable if the accused has applied for such bail, notwithstanding pendency of the bail application or subsequent filing of charge sheet or a report seeking extension of time by the prosecution before the Court, or filing of the charge sheet during the interregnum when challenged to the rejection of bail application is pending before a higher Court. (c) However, where the accused fails to apply for default bail when the right accrues to him, and subsequently a charge sheet, additional complaint or a report seeking extension of time is preferred before the Magistrate, the right to default bail would be extinguished. The Magistrate would be at liberty to take cognizance of the case or grant further time for completion of investigation, as the case may be, though the accused may still be released on bail under the provisions of the Cr.P.C. (d) Notwithstanding the order of the default bail passed by the Court, by virtue of Explanation-I to Section 167 (2) of Cr.P.C., the actual release of the accused from custody is contingent on the directions passed by the competent court grant bail. If the accused fails to furnish bail and/or complied with the terms and conditions of the bail order within the time stipulated by the court, his continued detention in custody is valid. 24. If the accused fails to furnish bail and/or complied with the terms and conditions of the bail order within the time stipulated by the court, his continued detention in custody is valid. 24. In view of the above stated authoritative principle on law, it is apt to refer to Section 167 CrPC which deals with the procedure when investigation cannot be completed in twenty four hours, which is as follows:- 167. Procedure when investigation cannot be completed in twenty four hours. (1) xxxxxxxxxx. (2) xxxxxxxxxx. Provided that- (a) The Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days; if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding,- (i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years; (ii) sixty days, where the investigation relates to any other offence. 25. As discussed supra, the punishment prescribed under Section 420 IPC is 7 years and fine and for Section 406 IPC is 3 years or fine or both and the punishment for the offence under Section 5 of the Act, is with imprisonment for a term which may extend to 10 years and with fine which may extend to rupees one lakh and such financial establishment shall also be liable for fine which may extend to rupees five lakhs. 26. As discussed in Rakesh Kumar Paul supra, a three judge Bench with majority of 2:1 considered the minimum sentence in all cases where the minimum sentence is less than 10 years and maximum sentence is death or life imprisonment, to apply Section 167(2)(a)(ii) and the accused will be entitled to grant of default bail after 60 days in case charge sheet is not filed. In the said case, the indefeasible right of the accused for default bail, procedure for obtaining default bail, duty of the Courts were discussed and on facts held that the accused therein is entitled for grant of default bail and directed the trial Judge to release the accused therein on default bail on imposition of certain conditions to its satisfaction. In the said case, the indefeasible right of the accused for default bail, procedure for obtaining default bail, duty of the Courts were discussed and on facts held that the accused therein is entitled for grant of default bail and directed the trial Judge to release the accused therein on default bail on imposition of certain conditions to its satisfaction. In the said judgment, the Apex Court has also referred guidelines issued by it in Uday Mohanlal Acharya Vs. State of Maharashtra 2001 5 SCC 453 it was also held that if an accused files an application for grant of default bail and is willing to furnish bail, then he is deemed to have exercised his right to avail of bail and the said right cannot be defeated by filing the charge sheet thereafter. It further held that the accused does not have to file a detailed application. All he has to aver in the application is that since 60/90 days have expired and the charge sheet has not been filed, he is entitled to bail and he is willing to furnish bail. This indefeasible right cannot be defeated by filing the charge sheet and after the accused has offer to furnish bail. It was further held that the Magistrate should also not encourage wrongful detention and must inform to the accused of his right. In case, the accused still does not want to exercise his right then he shall remain in custody but if he chooses to exercise his right and his willing to furnish bail, he must be enlarged on bail. 27. As discussed supra, in the present case, the punishment prescribed for the offence under Section 420 is 7 years, 406 is 3 years and for Section 5 of the Act, is with imprisonment for a term which may extend to 10 years and with fine which may extend to Rs. 5 Lakhs, the investigation has to be completed within 60 days. The said principle was also held by the Hon'ble Apex Court in Rakesh Kumar Paul supra in ratio of 2:1 by referring to its earlier judgment in Rajeev Chaudhary supra and in Bhupinder Singh Vs. Jurnail Singh (2006) 6 SCC 277 28. In the present case also, the Police have arrested the petitioner on 02.10.2020 and they have not completed investigation. Jurnail Singh (2006) 6 SCC 277 28. In the present case also, the Police have arrested the petitioner on 02.10.2020 and they have not completed investigation. Learned Public Prosecutor did not get any specific instructions as to whether any application filed seeking extension of time to complete the investigation and file final report. His contention is that the petitioner is not cooperating with the Investigating Officer and not furnishing the details of the victims/investors. There are serious allegations against the petitioner herein. The allegation against the petitioner is that he has cheated the victims to a tune of 2.38 Crores and the Investigating Officer has already recorded the statements of 21 witnesses and he has to record the statements of some more witnesses. For the said reason, according to learned Public Prosecutor, the Investigating Officer has not completed the investigation and not filed final report within the time stipulated under Section 167(2) of Cr.P.C. Whether the Investigating Officer has filed any application seeking extension of time to complete the investigation and file final report is not known to this Court. Admittedly, the Investigating Officer has not filed the final report within the statutory period prescribed under Section 167(2) of Cr.P.C. though they have arrested the petitioner on 02.10.2020. 29. Accordingly, the Criminal Petition is dismissed. However, liberty is granted to the petitioner to approach the Court below and move an application seeking statutory bail by raising all the contentions that are raised in the present application including the principle laid down by the Hon'ble Apex Court in Rakesh Kumar Paul supra, Uday Mohanlal Acharya supra and other judgments and the Court below shall consider the same and pass appropriate orders in accordance with law. Miscellaneous petitions, pending if any, shall stand closed.