THE HON'BLE SRI JUSTICE K.C.BHANU
CRIMINAL PETITON No. 2890 OF 2012.
27-03-2012
The State represented by the Dy.Superintendent of Police, SPE, CBI Hyderabad.
B.P.Acharya
Counsel for the Petitioner: Mr. P.Kesava Rao, Spl.S.C. for CBI
Counsel for the Respondent : Mr.V.Surender Rao
<Gist :
>Head Note:
? Cases referred:
1.(1978) 1 SCC 118
2. AIR 1980 SC 962
ORDER:
This petition is filed by Deputy Superintendent of Police, SPE, CBI,
Hyderabad, under Section 439 (2) r/w 482 Cr.P.C. to call for the records
relating to the docket order, dated
16-03-2012 passed in RC.18 (A)/2011-C.C.06 of 2012 on the file of the learned
Special Judge for CBI Cases at Hyderabad and quash the same.
2. The respondent (A1) is the accused for the offences punishable under
Sections 120-B r/w 420 , 409, 420 and 477-A IPC and 13 (2) r/w 13 (1)(c) and
(d) of Prevention of Corruption Act, 1988. The docket order, dated 16-03-2012
reads that the case was taken on file on 09-03-2012, that no sanction was
obtained for A1 and A11, that on 09-03-2012, the learned Deputy Legal Advisor
submitted that filing of charge sheet without sanction orders is not proper,
that the matter is posted to today i.e., on 16-03-2012 for further hearing and
also for getting sanction orders from the Government and that the sanction
orders passed against A1 and A11 are available. The charge sheet was filed
against A1 to A6 and A9 to A14. It was mentioned in the charge sheet that the
investigation against A7 and A8 i.e., N.Sunil Reddy and G.Vijaya Raghav is still
pending and supplementary charge sheet will be filed against them. A1, A11 and
A12 are public servants. A12 is a retired public servant. No sanction is
required for A12. So far, no sanction order of A1 and A11 obtained and filed in
the Court. As per Section 19 of P.C. Act, 1988, no Court should take cognizance
of an offence punishable under Sections 7, 10, 11, 13 and 15 of P.C. Act, 1988
alleged to have been committed by a public servant. As such no cognizance of the
offences alleged to have been committed by A1 and A11 can be taken. The charge
sheet is taken on file for the offences under Sections 120-B r/w 420, 409 and
477-A IPC against A2 to A8, A9 and A14, for the offences under Sections 120-B
r/w 420 and 409 IPC against A1, for the offences under Sections 120-B IPC and 13
(2) r/w 13 (1)(d) and 15 of P.C. Act, 1988 against A12 and for the offences
under Sections 120-B r/w 420, 109 and 409 IPC against A13. Since the offences
alleged against A1 are not being taken cognizance for want of sanction under
Section 19 of P.C. Act, 1988, he (A1) shall be released on bail on his executing
a bond for Rs.25,000/- with two sureties for like sum each to the satisfaction
of this Court. A1 should not leave Hyderabad without the permission of this
Court. A1 should surrender his pass port if any otherwise he should submit the
same through an affidavit that he has no passport.
3. There cannot be any dispute that the Court will have no inherent power of
remand of an accused to any custody unless the power is conferred by law.
4. The Court has to apply its mind for granting or refusing the bail to the
accused with regard to facts of the case and the Court has to take note of
certain aspects for grant or refusal of bail in view of decision reported in
GURUCHARAN SINGH AND OTHERS V STATE (DELHI ADMINISTRATION) 1, wherein it was
held thus:
" Section 439 (1), Cr. P. C. of the new Code, on the other hand, confers special
powers on the High Court or the Court of Session in respect of bail. Unlike
under S. 437 (1) there is no ban imposed under S. 439 (1), Cr. P. C. against
granting of bail by the High Court or the Court of session to persons accused of
an offence punishable with death or imprisonment for life. It is, however,
legitimate to suppose that the High Court or the Court of Session will be
approached by an accused only after he has failed before the Magistrate and
after the investigation has progressed throwing light on the evidence and
circumstances implicating the accused. Even so the High Court or the Court of
session will have to exercise its judicial discretion in considering the
question of granting of bail under S. 439 (1), Cr. P.C. of the new Code. The
overriding considerations in granting bail to which we adverted to earlier and
which are common both in the case of S. 437 (1) and S. 439 (1) Cr. P. C. of the
new code are the nature and gravity of the circumstances in which the offence is
committed; the position and the status of the accused with reference to the
victim and the witnesses; the likelihood, of the accused fleeing from justice;
of repeating the offence, of jeopardising his own life being faced with a grim
prospect of possible conviction in the case; of tampering with witnesses; the
history of the case as well as of its investigation and other relevant grounds
which, in view of so many variable factors, cannot be exhaustively set out."
5. No doubt, granting of bail is discretionary order and that discretion
has to be exercised judiciously and it should not be arbitrary and capricious
and is governed by well established principles. If the discretion is exercised
in an arbitrary or unjudicial manner, remedy by way of resort to higher Courts
is always open to the aggrieved party. The order must contain though not
elaborate but brief reasons for grant of bail. Any order without any reasons
can be said to be a perverse order. As seen from the order, no reason was
assigned for granting bail to the respondent herein (A1). Simply because,
cognizance was not taken for want of sanction by the competent authority, that
does not mean the accused is entitled for bail automatically.
6. Mr. C.Padmanabha Reddy, learned senior counsel appearing for the respondent
herein (A1) contended that under Section 309 (2) Cr.P.C., after cognizance is
taken, the Court gets power to remand the accused person, that as cognizance has
not been taken, the accused cannot be remanded to judicial custody and hence the
order of the trial Court is correct, legal and proper.
7. For this purpose, it is necessary to refer to sub-section (2) of Section 309
Cr.P.C., which reads thus:
"309 Power to postpone or adjourn proceedings:
(1) ...
(2) If the Court, after taking cognizance of an offence, or commencement of
trial, finds it necessary or advisable to postpone the commencement of , or
adjourn, any inqauiry or trial, it may, from time to time, for reasons to be
recorded, postpone or adjourn the same on such terms as it thinks fit, for such
time as it considers reasonable, and may by a warrant remand the accused if in
custody"
8. The above provision consists of two parts. First part empowers the Court
after taking cognizance of an offence or commencement of trial, finds it
necessary or advisable to postpone the commencement. The second part provides
grant of adjournment any inquiry or trial from time to time after recording
reasons. Sub-section (2) also gives discretion to the Court to remand the
accused if he is custody. The power of a Court to remand the accused to custody
could be exercised either under Section 167 or 309 Cr.P.C. Once the charge sheet
is filed, period of remand under Section 167 Cr.P.C. comes to an end. If
further custody is necessary, it can be done only under Section 309 Cr.P.C.
9. In this case, the petitioner herein (CBI) filed charge sheet on 01-02-2012
without obtaining any necessary sanction from the competent authority as
required under Section 197 Cr.P.C. as well as Section 19 (1) of P.C. Act, 1988.
According to counsel for CBI, proposals to prosecute the accused have been sent
and they are awaiting. That does not mean, the accused cannot be remanded in
view of the fact that petitioner has not obtained any sanction order.
Investigation commences after receipt of information of a cognizable offence
starting from Section 154 Cr.P.C. and culminates into filing of a report under
Section 170 Cr.P.C. Similarly after filing of charge sheet, the inquiry
commences. Inquiry is defined under Section 2 (g) of Cr.P.C., which means every
inquiry, other than a trial conducted under the Code by a Magistrate or Court.
After filing of police report, the proceedings till trial commences would be an
inquiry. In other words every inquiry before trial to ascertain whether any
offence has been committed and any one should be put on trial. The word 'trial'
has not been defined under Cr.P.C.. Therefore, it is necessary to look into
the authoritative pronouncement of Apex Court as to the starting point of
commencement of trial. On this aspect, it is pertinent to refer to a decision
in V.C.SHUKLA V STATE THROUGH CBI 2, wherein it was held thus:
"For these reason, therefore, we are satisfied that the proceedings starting
with Section 238 of the Code including any discharge or framing of charges under
Section 239 or 240 amount to trial."
10. Trial is a judicial proceeding before the Court, which ends in
conviction or acquittal. All other proceedings are inquiries and they have
various endings according to circumstances.
11. The trial deemed to have been commenced upon a police report
instituted by the police in a warrant case after framing of charges.
Therefore, after filing of the police report under Section 170 Cr.P.C. and
before commencement of trial, the interregnum period can safely be called as
inquiry. In such a case, Section 309 Cr.P.C. empowers the Court during enquiry
to remand the accused for a term not exceeding 15 days. Simply because, the
Investigating Agency has not filed any sanction orders from the competent
authority, that does not mean, the accused is entitled for bail automatically or
as a matter of right. This aspect of the case has been completely overlooked by
the trial Court. It is surprising to note that without there being any bail
application and without hearing the counsel for CBI, bail was granted. In the
facts and circumstances of the case, the learned Judge ought to have considered
the case for grant of bail on merits. Therefore, the order under challenge is a
perverse one and the same is liable to be set aside.
12. Accordingly, the Criminal Petition is allowed setting aside the docket
order, dated 16-03-2012 on the file of Special Judge for CBI Cases, Hyderabad.
The respondent herein (A1) is directed to surrender before the concerned Court
forthwith, failing which, the petitioner (CBI) is at liberty to arrest and
produce him before the concerned CBI Court.
----------------------
K.C.BHANU, J
DATED: 27-03-2012
