THE HON’BLE SRI JUSTICE K.C. BHANU
CRIMINAL PETITION No. 2219 of 2012
ORDER:
This criminal petition is filed under Section 482 of Criminal Procedure Code, 1973, challenging the order dated 22.02.2012 of the learned Special Judge for CBI Cases, Hyderabad, in Memo S.R.No.532 of 2012 in R.C.No.19(A) of 2011-CBI-HYD, whereunder and whereby the memo filed by the petitioner-Central Bureau of Investigation (CBI), for examination of respondents 2 and 3 herein for the purpose of investigation relating to R.C.No.19(A)/2011-CBI-HYD was closed with an observation that no order can be passed according permission to the CBI to examine Mr.V.D.Raja Gopal and Smt.Y. Sree Lakshmi, for the purpose of investigation.
2. A memo was filed by the CBI stating that, on the basis of the orders of this Court in W.P.Nos. 794 and 6604 of 2011 dated 10.08.2011, a case in R.C.No.19(A)/2011-CBI-HYD was registered under Section 120B r/w Sections 420, 409 and 477A IPC and Sections 13(2) r/w 13(1)(c) and (d) of the Prevention of Corruption Act, 1988 against Sri Y.S. Jagan Mohan Reddy and 73 others, and investigation is in progress in the said case. It is submitted that, during the course of investigation, several documents relating to the case were collected from the Department of Mines and Geology, and on scrutiny, it revealed that they have been processed by Sri V.D. Raja Gopal, the then Director of Mines and Geology and Smt. Y. Sree Lakshmi, the then Secretary, Industries and Commerce Department, Govt. of A.P., who are presently lodged in Central Prison, Chenchalguda and Womens Prison, Chenchalguda, respectively, in R.C.No.17(A)/2009-CBI-HYD (M/s Obulapuram Mining Case). It is further submitted that necessary permission may kindly be accorded to the investigating officers, Sri Mohd. Jaffer, Sri B Ramdas and Sri N. Raghavendra Kumar, Inspectors, CBI, Hyderabad, for examination of said Sri V.D. Raja Gopal and Smt. Y. Sree Lakshmi, in the jail premises, in connection with the present case.
3. In the said memo, the 2nd respondent-Sri V.D. Raja Gopal filed an objection stating that he is in judicial custody in C.C.No.1 of 2012 on the file of Special Judge for CBI Cases, Hyderabad, which arises out of R.C.No.17(A)/2009-CBI- HYD, and that he is not in judicial custody in R.C.No.19(A)/2011-CBI-HYD, as such no orders can be passed on the present memo touching his custodial detention in C.C.No.1 of 2012 and that no reasons were mentioned requiring the necessity for his examination in R.C.No.19(A)/2011-CBI-Hyd, and that the purpose or reasons for the intended examination was not mentioned in the memo. It is submitted that the nature of examination of the person who is in custody of this Court is not mentioned and the same is necessary in as much as the proposed examination should be as contemplated under Cr.P.C, and further the investigating agency has not mentioned the steps taken by it for the examination of the person who is in custody for which the present request is being made, and that the statute or the rules do not contemplate any memo for seeking directions or reliefs, and as such no orders can be passed on the memo filed by the investigating agency, and that the request of the investigating agency is untenable and not permissible under the law.
4. The 3rd respondent herein filed counter in the said memo stating that she is not in judicial custody in R.C.No.19(A)/2011-CBI-HYD, and that she was questioned in detail by the CBI in R.C.No.17(A)/2009-CBI-HYD, on several occasions, with regard to the files she dealt while she was Secretary, Mines, and that she gave all the information within her knowledge and that she does not have any more information to divulge to CBI. It was also stated in the counter that the said memo was filed by the CBI with an oblique motive to harass her and the files regarding which she was proposed to be questioned, have not been disclosed to her.
5. Learned designated Court closed the said memo by order dated 22.02.2012 observing that the very documents speak of its own as to their nature and the person who processed it, hence there is no need for examining the respondents 2 and 3 herein for those documents and no orders can be passed by the Court on a memo and there is no provision in law under Cr.P.C. as to the examination of witnesses by the CBI. Challenging the same, the present petition is filed.
6. Learned Standing Counsel appearing for the CBI contended that the respondents 2 and 3 are in judicial custody in pursuance of the orders passed by the competent Court in connection with C.C.No.1 of 2012 on the file of Special Judge for CBI Cases, and that they cannot be examined without the permission of the Court because they were under judicial custody under the orders of the Court; that their examination is necessary in respect of the facts knowing to the witnesses in respect of crime in R.C.No.19(A) of 2011-CBI, Hyd, and hence he prays to set aside the impugned order and accord permission to them to examine the respondents 2 and 3.
7. Learned counsel for the 2nd respondent contended that no reasons are assigned for examination of 2nd respondent and therefore, the trial Court rightly dismissed the same.
8. On the other hand, learned Senior Counsel appearing for the 3rd respondent contended that the present application is filed only to harass and persecute the 3rdrespondent with an oblique motive and there is no purpose of examining her because the Government Orders would themselves speak about the existing nature of things, and that the 3rd respondent cannot be interrogated, and that there is no provision under Cr.P.C. to permit the CBI officials to examine a person who is in the judicial custody, and that even the documents allegedly seized by the CBI did not relate to personal documents of 3rd respondent and hence, it is nothing but to extract answers so as to implicate her in this case and hence, he prays to dismiss the petition.
9. It is not in dispute before this Court that the respondents 2 and 3 are A3 and A4 in C.C.No.1 of 2012 on the file of the Special Judge for CBI Cases, Hyderabad. It is also not in dispute that, in pursuance of the remand orders extended from time to time in the said case, the respondents 2 and 3 are in judicial custody. The 2nd respondent is lodged in Central Prison, Chenchalguda, and the 3rd respondent is lodged in Womens’ Prison, Chanchalguda. A memo was filed by CBI to examine these two persons in connection with R.C.No.19(A)/2011/CBI-Hyd, registered for the offences punishable under Sections 120B, 420, 409 and 477A IPC and Section 13(2) read with 13(1)(c) and (d) of the Prevention of Corruption Act, 1988, which was closed by the Special Judge for CBI Cases, Hyderabad.
10. The investigating officer has got statutory power to examine any person by issuing summons or an order in writing to examine them. Under Section 161 Cr.P.C., the investigating officer can examine any person who is acquainted with the facts of the case. In view of the fact that the investigating officer cannot issue summons in the present case, as the respondents 2 and 3 are in judicial custody by orders passed by the competent Court, necessarily the investigating officers have to seek permission of the concerned Court which remanded the respondents 2 and 3 to judicial custody.
Sub-Section (1) of Section 161 Cr.P.C. contemplates:
“Any police officer making an investigation under this Chapter, or any police officer not below such rank as the State Government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the case.”
Sub-section (2) of Section 161 Cr.P.C., makes it clear that:
“Such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.”
11. One of the main components of investigation is examination of witnesses. Investigation means search for material and facts in order to find out whether or not an offence has been committed. It is confined to proceedings taken by the police. In other words, it is ascertainment of facts, sifting of material and search for relevant data.
12. There cannot be any dispute that investigation includes going to the spot, examining the witnesses including the accused, observing the scene of occurrence, preparation of mediators report. This has been stated by the Supreme Court in the decision in H.N. RISHBUD AND ANOTHER v. STATE OF DELHI[1], wherein it was held that:
“Thus, under the Code investigation consists generally of the following steps: (1) Proceeding to the spot, (2) Ascertainment of the facts and circumstances of the case, (3) Discovery and arrest of the suspected offender, (4) Collection of evidence relating to the commission of the offence which may consist of (a) the examination of various persons (including the accused) and the reduction of their statements into writing, if the officer thinks fit, (b) the search of places or seizure of things considered necessary for the investigation and to be produced at the trial, and (5) Formation of the opinion as to whether on the material collected there is a case to place the accused before a Magistrate for trial and if so taking the necessary steps for the same by the filing of a charge-sheet under Section 173.”
13. Therefore, from the above decision, it is clear that an investigating officer has power to examine any witness, and so also an investigating officer is given the power to require before himself, the attendance of any person appearing to be acquainted with the facts and circumstances of a case.
14. In the present case, the powers under Section 160 Cr.P.C., cannot be exercised by the investigating officers, for the reason that the persons whom they want to examine, are in judicial custody. Therefore, in order to examine a person who is in judicial custody, the investigating officer has to necessarily take permission of the concerned Court, which remanded that person into judicial custody. Perhaps, that is the reason why the CBI sought to accord permission to the investigating officers Sri Mohd. Jaffer, Sri B Ramdas and Sri N. Raghavendra Kumar, Inspectors, CBI, Hyderabad, for examining the respondents 2 and 3.
15. For examining the witnesses, the investigating officer need not disclose the purpose of examination of witnesses. If the investigating officer comes to the conclusion that the witnesses are acquainted with the facts of the case, then it is his statutory duty to examine such witnesses who are acquainted with the facts of the case. Even assuming for a moment that the memo filed by the CBI does not disclose reasons, it cannot be a ground to reject examining the witness because at that stage the investigating officer may not be in a position to show what are the facts which are exclusively in the knowledge of the witnesses. Coming to the second aspect that there is no provision in law for passing any orders on the said memo, which is one of the reasons for the trial Court to close the memo, no doubt, there is no provision under Cr.P.C. that when a person is in judicial custody, he can be examined by an investigating officer in relation to another cognizable offence, but at the same time, when the Court of Special Judge for CBI Cases has got power to remand the accused persons, it can be an implied power to permit the investigating officers to examine the persons who are acquainted with the facts of the case. Therefore, the Court of Special Judge for CBI Cases, ought not to have rejected the memo, and ought to have given permission to the investigating officers to examine the witnesses.
16. Admittedly, the respondents 2 and 3 viz., Sri V.D. Raja Gopal and Smt. Y. Sree Lakshmi, were not figured as accused in the present case as on today. Therefore, it is the statutory duty of the investigating officer to examine those persons in connection with crime in R.C.No.19(A)/2011/CBI-HYD, and therefore the impugned order is liable to be set aside.
17. Accordingly, the impugned order is set aside, and the investigating officers viz., Sri Mohd. Jaffer, Sri B Ramdas and Sri N. Raghavendra Kumar, Inspectors, CBI, Hyderabad, are hereby given permission to examine the respondents 2 and 3. The Jail Superintendent, Central Prison, Chanchelguda, and Womens Prison, Chanchelguda, is directed to allow the aforesaid investigating officers to examine the respondents 2 and 3.
18. With regard to the request of the learned Senior Counsel for the 3rd respondent, for the presence of an advocate at the time of examination of respondents 2 and 3, admittedly, respondents 2 and 3 are not shown as an accused, and therefore the necessary corollary or inference that can be drawn is that the investigating officer can examine them as witnesses. Furthermore, both the respondents 2 and 3 are well educated persons and held highly responsible posts for several years. There is no provision under Cr.P.C., or a constitutional right under Constitution of India or an authority decision is brought to the notice of this Court so as to give permission to an advocate to be present at the time of examination of persons who are not the accused. As witnesses, the respondents 2 and 3 have got right to remain silent with regard to aspects which may tend to incriminate against them, and the investigating officers shall not put such questions, which answers will have tendency to expose them to a criminal charge.
19. With the above observations, the criminal petition is allowed.
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JUSTICE K.C. BHANU
16th March, 2012
