The Gujarat High Court while dismissing the petition upheld an order remanding a co-accused in a bribery case against IRS Officer Santosh Karnani, to police remand even after grant of anticipatory bail.
A Single Bench of Justice M R Mengdey passed this order while hearing an application fied by Malav Ajitbhai Mehta.
The Application has been preferred by the Petitioner / Original Accused under Article 226 and 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973, challenging the order dated 4.5.2023 passed by the Special Judge – CBI, City Civil & Sessions Court, Ahmedabad below Application Seeking remand / Police Custody, whereby the Petitioner is ordered to be subjected to Police Remand for a period of two days.
Senior Advocate B.B Naik has submitted that initially the FIR in question was lodged before the ACB Police Station.
Subsequently the investigation has been transferred to the CBI. The co-accused Santosh Kamani happens to be a Class-I Officer of the Revenue Service of the Government of India.
As per the case of prosecution, on 4.10.2022, the first informant had sent a sum of Rs 30,00,000/- to the Angadia. It was intercepted by the CBI before it could be handed over to anybody.
It is alleged against the Petitioner that he had called upon the owner of the Angadia service and had asked to hand over the amount of Rs.30,00,000/- deposited by the first informant with the Angadia Pedhi to the person deputed by him for the purpose.
Thereafter the Applicant had approached this Court by filing a Anticipatory Bail Application. Vide order dated 25.10.2022, the Court had protected the Petitioner against his arrest pending the Application. Vide order dated 19.12.2022, the Application filed by the Petitioner for Anticipatory Bail was allowed by the Court and he was ordered to be enlarged on bail in the eventuality of his arrest.
Senior Advocate Naik submitted that after he was granted protection vide order dated 25.10.2022, the Petitioner had remained present before the Investigating Agency thrice. Upon being asked to do so and even after the anticipatory bail application was allowed by this Court, the Petitioner had remained present before the IA. The Petitioner has thus subsequently cooperated with the IA in the case.
Senior Advocate Naik submitted that pursuant to the order of the Court dated 19.12.2022 ordering the Petitioner to be enlarged on anticipatory bail, the Petitioner has never been arrested in connection with the offence. Section 167 of the Code of Criminal Procedure requires the Petitioner to be in custody for subjecting him to police remand. Since, after the order of anticipatory bail was passed by this Court, the Petitioner was never arrested, he cannot be said to be in custody, and therefore, the lower court ought not to have subjected the Petitioner to police custody.
Senior Advocate Naik submitted that the grounds mentioned in the Petition for remand before the lower court do not require the Petitioner to be subjected to police remand.
The Petition is opposed by the Additional Additional Solicitor General Devang Vyas inter alia contending that the Petitioner has remained present before the IA. As and when asked to do so, he has not cooperated with the investigation in the case.
He further submitted that during the course of investigation, the IA has collected certain material which indicates clear nexus between the Petitioner of the offence in question and the Petitioner is required to be confronted with the said material for taking the investigation of the offence to its logical conclusion.
He also submitted that the IA is not desirous of obtaining any confessional statement from the Petitioner nor would it be of any help to the IA.
He said that the lower court has taken all the aspects into consideration and has passed the appropriate order, which requires no interference at the hands of the Court in the Petition. He therefore submitted to dismiss the Petition.
The Court noted that,
The main ground raised on behalf of the Petitioner is to the effect that after the order dated 19.12.2022 passed by the Court in Criminal Miscellaneous Application, whereby, the Petitioner was ordered to be enlarged on anticipatory bail by the Court, the Petitioner was never arrested by the IA in connection with the offence, and therefore, the Petitioner cannot be said to be in custody and hence it could not have been subjected to any police remand.
It would be appropriate for the Court at this stage to disclose as to what is the material available against the Petitioner to connect him with the offence in question. However, the material produced before the Court by the IA prima facie establishes the connection between the Petitioner and the Angadia Pedhi involved in the matter. The material also prima facie indicates the fact that it was the Petitioner who had called up the owner of the Angadia Pedhi and had asked him to hand over the amount deposited by the first informant to the person deputed by him for the purpose.
“The apprehension voiced on behalf of the Petitioner that the IA is desirous of obtaining any confessional statement from the petitioner appears to be a misconception at this stage. It has also been made clear by the Additional Solicitor General that the IA does not intend to obtain any confessional statement from the Petitioner nor would it be of any use to the IA.
Having perused the order passed by the lower Court, it appears that the lower court has also taken into consideration the material available on record referred to herein above while passing the impugned order. Considering the said fact, the Petition appears to be devoid of any merit and therefore requires to be dismissed”, the Court observed while dismissing the petition.