The respondent/A7 is directed to be given to police custody to the petitioner-CBI officials for a period of three days from 04.02.2012 to 06.02.2012 (both days inclusive) from 8.00 AM to 6.00 PM. The Superintendent of the Prison, where the respondent/A7 is in custody, is directed to hand over custody of the respondent/A7 to petitioner-CBI officials everyday at 8.00 AM and the petitioner-CBI officials shall hand over the respondent/A7 to the prison authorities at 6.00 PM. Since it is the apprehension of the respondent/A7 that the CBI officials may resort to third degree methods during interrogation in police custody, it is directed that the respondent/A7 shall be interrogated before the Advocate of his choice, and that before handing over the respondent/A7 to the prison authorities, he shall be subjected to examination by a competent Civil Assistant Surgeon and along with his certificate with regard to health condition of the respondent/A7, the respondent/A7 shall be handed over to the concerned prison authorities.

            THE HON'BLE SRI JUSTICE K.C.BHANU

            CRIMINAL PETITION NO. 1252 OF 2012

O R D E R:

          This Criminal Petition is filed under Section 482 read with 167 (2) of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’) challenging the order dated 30.01.2012 in Crl.M.P. No.212 of 2012 in R.C. No.18 (A)/2011 passed by the learned Special Judge for CBI Cases, Hyderabad. 

2.       The petitioner filed the said petition before the Special Judge under Section 167 (2) Cr.P.C. for grant of police custody of respondent/A.7 for a further period of 7 days. The said petition was dismissed by the learned Special Judge on the ground that police custody of respondent/A.7 was given for three days from 28.1.2012 to 30.1.2012, for which the counsel for the respondent/A.7 also fairly conceded, and that it cannot be said that there would be some sort of co-operation from the side of respondent/A.7 if some period of custody is given to CBI.   

3.       Learned Special Public Prosecutor for CBI Cases Sri P.Kesava Rao appearing for the petitioner contended that the limited period of police custody of the respondent/A.7 is not sufficient as voluminous documents have to be confronted with the respondent/A.7 during the course of investigation and hence he prays to grant further police custody of the respondent/A.7.

4.       On the other hand, Sri C.Padmanabha Reddy, learned senior counsel appearing for the respondent/A.7 contended that the respondent/A.7 was already given to police custody for three days from 28.1.2012 to 30.1.2012; that there is no material to show that the respondent/A.7 received crores of rupees by one of the accused Ranga Rao; that the said Ranga Rao, who is the main accused, has been granted anticipatory bail; that the respondent/A.7 is nothing to do with any one of the companies in which the involvement of the government land is concerned; that right to examination cannot include right against self-incrimination and therefore he prays to dismiss the criminal petition as the learned Special Judge did not commit any irregularity in passing the impugned order.

5.       Central Bureau of Investigation (CBI) registered case RC No.18(A)/2011-CBI-HYD on 17.08.2011 for the offences punishable under Sections 120B read with 420, 409, 477A of the Indian Penal Code, 1860 (IPC) and 13 (2) read with 13 (1) (c) and (d) of the Prevention of Corruption Act, 1988.  The respondent is arrayed as A.7 in the said crime.  The reason given by the petitioner/CBI for extension of police custody of the respondent/A.7 is that during the limited period of police custody for three days, confrontation with the respondent/A.7 with the documents collected during investigation could not be completed as the same was voluminous, and that the investigation was at initial stage and so custodial interrogation of respondent/A.7 is essential to ascertain the end users of the excess money collected from villa/plot buyers.  

6.       The petitioner/CBI registered the case alleging inter alia that A.1 and others entered into a criminal conspiracy with EMMAR properties and some other companies to cheat M/s. APIIC at Hyderabad and other places during the years 2005-2010 and in furtherance of the alleged criminal conspiracy, M/s. EMMAR PJSC entered into agreement with M/s. Stylish Homes Real Estates Private Limited to sell villa plots at a pre-determined price which was less than the market value without the knowledge and consent of M/s. APIIC Board; that A.1 abused his official position by corrupt and illegal means and he knowingly and intentionally did not object to the sale of villa plots at lesser price; that, the Integrated Project consisting of Golf  Course, Club House, Boutique Hotel, Township, Convention Centre and Business Hotel, to be developed at Ac.535.00 of land at Manikonda and the leased land at HITEX was awarded to M/s. Emmar Properties PJSC, Dubai.   In the first instance, the Vigilance Department conducted enquiry and seized a Laptop relating to the sale transactions whereunder the actual price for which each villa/villa plot was sold.    But, as against the market value, price was mentioned as Rs.5,000/- per square yard in the year 2010.    It is the further alleged that actual market price of the land is more than Rs.50,000/- per square yard, and that the internal correspondence between the petitioner and some others retrieved from the Laptop of the accused, it is mentioned that none of the parties submitted any formal applications for allotment of villa plots and thereafter the petitioner obtained letters from the Directors of 10 companies as if the allottees have requested for cancellation of Memorandum of Understanding and prepared cancellation letters in the months of November and December, 2010, ante-dating letters of cancellation.

7.       It is the case of the prosecution that one of the accused sold the plots/villas at higher rates than the rates mentioned in the documents and collected crores of rupees and that out of the said amount, certain amount was given to the respondent/A.7, and that end users of the said excess money has to be ascertained by examining the accused.  

8.       Learned counsel for the petitioner relied on a decision in Central Bureau of Investigation, Special Investigation Cell-I, New Delhi v. Anupam J.Kulkarni[1], wherein it is held thus: (para 10).

“The learned Additional Solicitor General, however, submitted that in some of the cases of grave crimes it would be impossible for the police to gather all the materials within first fifteen days and if some valuable information is disclosed at a later stage and if police custody is denied the investigation will be hampered and will result in failure of justice. There may be some force in this submission but the purpose of police custody and the approach of the legislature in placing limitations on this are obvious. The proviso to 9 Section 167 is explicit on this aspect. The detention in police custody is generally disfavoured by law. The provisions of law lay down that such detention can be allowed only in special circumstances and that can be only by a remand granted by a magistrate for reasons judicially scrutinised and for such limited purposes as the necessities of the case may require. The scheme of Section 167 is obvious and is intended to protect the accused from the methods which may be adopted by some overzealous and unscrupulous police officers. Article 22 (2) of the Constitution of India and Section 57 of Cr. P.C. give a mandate that every person who is arrested and detained in police custody shall be produced before the nearest magistrate within a period of 24 hours of such arrest excluding the time necessary for the journey from the place of the arrest to the Court of the magistrate and no such person shall be detained in the custody beyond the said period without the authority of a magistrate. These two provisions clearly manifest the intention of the law in this regard and therefore it is the magistrate who has to judicially scrutinise circumstances and if satisfied can order the detention of the accused in police custody. Section 167(3) requires that the magistrate should give reasons for authorising the detention in the custody of the police. It can be thus seen that the whole scheme underlying the section is intended to limit the period of police custody. However, taking into account the difficulties which may arise in completion of the investigation of cases of serious nature the legislature added the proviso providing for further detention of the accused for a period of ninety days but in clear terms it is mentioned in the proviso that such detention could only be in the judicial custody. During this period the police are expected to complete the investigation even in serious cases. Likewise within the period of sixty days they are expected to complete the investigation in respect of other offences. The legislature however disfavoured even the prolonged judicial custody during investigation. That is why the proviso lays down that on the expiry of ninety days or sixty days the accused shall be released on bail if he is prepared to and does furnish bail. If as contended by the learned Additional Solicitor General a further interrogation is necessary after the expiry of the period of first fifteen days there is no bar for interrogating the accused who is in judicial custody during the periods of 90 days or 60 days. We are therefore unable to accept this contention.”

          Even from the above decision, it is clear that the Magistrate has to judicially scrutinize the material on record for the purpose of granting police custody.

9.       The learned counsel for the respondent/A.8 also relied on a decision in Selvi & others v. State of Karnataka[2] wherein it is held thus: (paras 90 & 91).  

             “Undoubtedly, Article 20(3) has an exalted status in our Constitution and questions about its meaning and scope deserve thorough scrutiny. In one of the impugned judgments, it was reasoned that all citizens have an obligation to co- operate with ongoing investigations. For instance reliance has been placed on Section 39, CrPC which places a duty on citizens to inform the nearest magistrate or police officer if they are aware of the commission of, or of the intention of any other person to commit the crimes enumerated in the section. Attention has also been drawn to the language of Section 156(1), CrPC which states that a police officer in charge of a police station is empowered to investigate cognizable offences even without an order from the jurisdictional magistrate. Likewise, our attention was drawn to Section 161(1), CrPC which empowers the police officer investigating a case to orally examine any person who is supposed to be acquainted with the facts and circumstances of the case. While the overall intent of these provisions is to ensure the citizens' cooperation during the course of investigation, they cannot override the constitutional protections given to accused persons. The scheme of the CrPC itself acknowledges this hierarchy between constitutional and statutory provisions in this regard. For instance, Section 161(2), CrPC prescribes that when a person is being examined by a police officer, he is not bound to answer such questions, the answers of which would have a tendency to expose him to a criminal charge or a penalty or forfeiture.

            Not only does an accused person have the right to refuse to answer any question that may lead to incrimination, there is also a rule against adverse inferences being drawn from the fact of his/her silence. At the trial stage, Section 313(3) of the CrPC places a crucial limitation on the power of the court to put questions to the accused so that the latter may explain any circumstances appearing in the evidence against him. It lays down that the accused shall not render himself/herself liable to punishment by refusing to answer such questions, or by giving false answers to them. Further, Proviso (b) to Section 315(1) of CrPC mandates that even though an accused person can be a competent witness for the defence, his/her failure to give evidence shall not be made the subject of any comment by any of the parties or the court or give rise to any presumption against himself or any person charged together with him at the trial. It is evident that Section 161(2), CrPC enables a person to choose silence in response to questioning by a police officer during the stage of investigation, and as per the scheme of Section 313(3) and Proviso (b) to Section 315(1) of the same code, adverse inferences cannot be drawn on account of the accused person's silence during the trial stage.”

          There is no dispute about the proposition of law laid down by the Hon’ble Supreme Court of India.  Article 20 (3) of the Constitution of India, no person accused of any offence shall be compelled to be a witness against himself.   Under Section 162 (2) Cr.P.C., any 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.   However, law permits that the police can conduct investigation in respect of a cognizable offence and investigation includes examination of accused.    For eliciting the facts within the knowledge of the accused, examination of the accused is also permissible under law.  In other words, police may examine any person supposed to be acquainted with the facts and circumstances of the case.  Considering the gravity and magnitude of the case and in view of the fact that voluminous documents seized by CBI during the course of investigation have to be confronted with the respondent/A.7, the period of police custody granted by the learned Sessions Judge may not be sufficient for interrogation.   Hence, further police custody of the respondent/A.7 for a period of three days can be granted from 04.02.2012 onwards.  

10.     The respondent/A7 is directed to be given to police custody to the petitioner-CBI officials for a period of three days from 04.02.2012 to 06.02.2012 (both days inclusive) from 8.00 AM to 6.00 PM.  The Superintendent of the Prison, where the respondent/A7 is in custody, is directed to hand over custody of the respondent/A7 to petitioner-CBI officials everyday at 8.00 AM and the petitioner-CBI officials shall hand over the respondent/A7 to the prison authorities at 6.00 PM.    Since it is the apprehension of the respondent/A7 that the CBI officials may resort to third degree methods during interrogation in police custody, it is directed that the respondent/A7 shall be interrogated before the Advocate of his choice, and that before handing over the respondent/A7 to the prison authorities, he shall be subjected to examination by a competent Civil Assistant Surgeon and along with his certificate with regard to health condition of the respondent/A7, the respondent/A7 shall be handed over to the concerned prison authorities.   

11.     The Criminal Petition is, accordingly, allowed.

________________

(K.C.BHANU, J.)

03.02.2012

DRK

 

 

THE HON'BLE SRI JUSTICE K.C.BHANU

CRIMINAL PETITION NO. 1252 OF 2012

             

           Date: 03.02.2012

---

[1] (1992) 3 Supreme Court Cases 141

[2] (2010) 7 Supreme Court Cases 263

The Andhra Pradesh Prisons Rules, 1979 (for short, ‘the Rules, 1979’) inter alia deal with rights and duties of prisoners. Rule 489 (1) of the Rules reads as follows: ‘Every newly convicted prisoner shall be allowed reasonable facilities for seeing or communicating with his relatives, friends or legal advisers with a view to the preparation of an appeal or to the procuring of bail and shall also be allowed to have interviews or to write letters to his relatives, friends or legal advisers, once or twice, or often or if the Superintendent considers it necessary, to enable him to arrange for the management of his property or other family affairs.” A perusal of the above Rule makes it clear that it would apply to convicted prisoners. Chapter XXXIX of the Rules, 1979 deals with the rights of under trial prisoners. In the Note in Rule 746 of the Rules, it is stated that, for the Rules regulating interviews and communications – vide Chapter XXVII would be applicable. Therefore, Rule 489 (1) of the Rules, 1979 not only applies to convicted prisoners but also to the under-trial prisoners. 9. Rule 610 of the Hyderabad Prisons Rules came up for consideration before this Court in a decision in T.Nagi Reddy & Ramakrishnareddi v. State of A.P., Hyderabad[1], wherein it is held thus: (para 20) “The last request is for the use of a typewriter. The petitioners stated that they have to prepare for their defence . It is stated that the records are voluminous and copies have to be prepared for the use of their lawyers. I think, in view of this the request for permission to use a typewriter is justified. It is argued by the learned Government Pleader that under Rule 605 they can be supplied only and writing materiel and typewriter cannot be included in the expression writing material or stationery. I think in the context of the present day, when the typewriter is freely used for correspondence, a broad meaning has to be given to the expression stationery so as to include a typewriter. Apart from this Rule 610 says that unconnected criminal prisoners shall be allowed all reasonable facilities, at proper times and under proper restrictions, for interviewing or otherwise communicating either orally or in writing with their relatives friends and legal advisers. In view of the large volume of the record and necessity for getting the documents typed, it can be said that permission to use a typewriter would be a reasonable facility for communicating with their legal advisers and conducting the defence.” The above decision has no application to the facts of the present case. By providing type-writer, there is no possibility of communicating secret information to outside persons or possibility of influencing the witnesses. 10. Section 31 of the Prisons Act, 1894 reads thus: “A civil prisoner or an unconvicted criminal prisoner shall be permitted to maintain himself, and to purchase, or to receive from private sources at proper hours food, clothing, bedding or other necessities, but subject to examination and to such rules as may be approved by the Inspector General.” Section 33 of the Prisons Act, 1894 reads thus: “Every civil prisoner and unconvicted criminal prisoner unable to provide himself with sufficient clothing and bedding, shall be supplied by the Superintendent with such clothing and bedding as may be necessary.” Both these provisions would clearly go to show that other necessities, including food, clothing and bedding, can be given to the under-trial prisoner subject to examination.

            THE HON'BLE SRI JUSTICE K.C.BHANU

            CRIMINAL PETITION NO.  1031 OF 2012

O R D E R:

          This Criminal Petition is filed under Section 482 of the Code of Criminal Procedure, 1973 (Cr.P.C.) challenging the order dated 23.01.2012 passed by the Special Judge for CBI Cases, Hyderabad in Crl.M.P. No.76 of 2012 in F.I.R. R.C. No. 19 (A) of 2011-HYD, registered by the respondent-Central Bureau of Investigation(CBI).

2.       The petitioner, who is A.2 in a case in F.I.R. R.C. No.19 (A) of 2011-HYD registered by respondent-CBI, filed the petition before the learned Special Judge seeking permission to use Laptop/Computer stating inter alia as follows.

          The petitioner is a qualified Chartered Accountant and is a partner of M/s. V.S. Reddy SP & Associates Chartered Accounting Firm.  It is serving many clients in the states of Andhra Pradesh, Karnataka and Tamilnadu.  He is a financial advisor to reputed companies. Though the petitioner is in judicial custody, his services as Financial Advisor are very much required, and in the absence of the same, the companies would suffer great prejudice besides financial loss.   The petitioner is also assisting various advocates in defending/filing various cases filed by/against the said companies before various authorities including the Hon’ble Supreme Court of India, High Courts of Delhi and Andhra Pradesh, Income Tax Appellate Tribunals and before the Enforcement Director, New Delhi.   Therefore, the petitioner requires laptop/computer to give necessary instructions and also for preparation of affidavits/petitions/counters to be filed before various authorities.   The petitioner may also be permitted to use Pen Drive/Universal Serial Bus (USB)/Compact Disc (CD) for transferring the data to the advocate/s and that he would not use internet services to the laptop/computer.   Hence, the petition.

3.       The respondent-CBI filed its counter before the learned Special Judge stating as follows.

The petitioner played a crucial role in mobilisng investments to the companies promoted by A.1.   With the advancements in technology having access to such electronic gadgets i.e. laptop/ computer will not only enable the accused to easily access internet facility with outside world and with other witnesses in the case, but also with such access, the accused would be able to communicate to anybody and everybody in the world and thereby it will adversely affect the prosecution case, and so, the very purpose of keeping the petitioner in judicial custody would be defeated.  The investigation is in crucial stage, and if the permission as prayed for, is granted to the petitioner, it will adversely hamper the investigation. The petitioner has not produced any record to show whether as per Jail Manual it is permissible or not to use the laptop.  Hence, he prayed to dismiss the petition.

4.       The learned Special Judge, upon considering the material on record, held that misuse of laptop/computer by the petitioner cannot be imagined or stopped or prevented, as such, the said facility sought for cannot be extended to the petitioner at the stage when investigation is in progress, and accordingly, dismissed the same.  Challenging the same, the present Criminal Petition is preferred.

5.       Sri S.Niranjan Reddy, learned counsel for the petitioner contended that the petitioner is a qualified Chartered Accountant and he has many clients in the States of Andhra Pradesh, Tamilnadu and Karnataka; that the petitioner has to assist various advocates in defending the present case and also in cases filed by/against the group of companies before various authorities; that, internet disabled laptop/computer may be permitted to be used by the petitioner so that he will prepare material so as to defend his case; that the laptop/computer may be certified by a technical engineer so that the same cannot be used for any other purpose other than the one specified in the petition; that by virtue of the impugned order, the petitioner will be deprived of his valuable right conferred on him; hence, he prays to set aside the impugned order and allow the petition filed by the petitioner.  

6.       Learned Special Public Prosecutor for CBI Cases Sri P.Kesava Rao appearing for the respondent-CBI contended that Jail Manual does not permit under-trial prisoners to use laptop/computer; that with the laptop/computer, there is possibility of petitioner influencing the witnesses by accessing internet within India and outside the world by using data cards; that even if the laptop/computer is disabled with internet facility, with the advanced technology of Wify, internet can be accessed by the petitioner; that internet can be accessed using strong modem outside jail and through Wify; that the permission sought for is nothing but to influence the witnesses by using internet in dubious manner; that, the learned Special Judge rightly dismissed the petition and there are no grounds to interfere with the same.

7.       The respondent-CBI registered a case in F.I.R. R.C. No.19 (A) of 2011-HYD for the offences under Sections 120B read with 420, 409, 420 and 477A of the Indian Penal Code, 1860 (IPC) and 13 (2) read with 13 (1) (c) & (d) of the Prevention of Corruption Act, 1988.  The petitioner is arrayed as A.2 in the said case and he is in judicial custody. He is a Chartered Accountant.  On two grounds the petitioner wanted permission from the Court to use laptop/computer viz. to render his services to his clients as well as to assist various advocates in defending the present case and also various other cases filed before various authorities, including this Court, the Hon’ble Supreme Court of India, High Court of Delhi, Income Tax Appellate Tribunals and before the Enforcement Director, New Delhi.    Learned counsel for the petitioner has not pressed the petition with regard to the requirement of the laptop/computer so as to give advice to the clients being a qualified Chartered Accountant and a partner of M/s. V.S. Reddy SP & Associates Chartered Accounting Firm.  The learned counsel is pressing the petition with regard to permission to use laptop/computer without internet facility for the purpose of defending cases pending before various authorities, including this case, and it is his contention that if the laptop/computer is disabled with internet facility, there is no scope for misusing the same and any material that is typed in the laptop or computer can be checked by the jail authorities so that misuse of the facility that may be provided to the petitioner can be intercepted or prevented.   

8.       The Andhra Pradesh Prisons Rules, 1979 (for short, ‘the Rules, 1979’) inter alia deal with rights and duties of prisoners.   Rule 489 (1) of the Rules reads as follows:

          ‘Every newly convicted prisoner shall be allowed reasonable facilities for seeing or communicating with his relatives, friends or legal advisers with a view to the preparation of an appeal or to the procuring of bail and shall also be allowed to have interviews or to write letters to his relatives, friends or legal advisers, once or twice, or often or if the Superintendent considers it necessary, to enable him to arrange for the management of his property or other family affairs.”

          A perusal of the above Rule makes it clear that it would apply to convicted prisoners. 

Chapter XXXIX of the Rules, 1979 deals with the rights of under trial prisoners.  In the Note in Rule 746 of the Rules, it is stated that, for the Rules regulating interviews and communications – vide Chapter XXVII would be applicable.  Therefore, Rule 489 (1) of the Rules, 1979 not only applies to convicted prisoners but also to the under-trial prisoners.   

9.       Rule 610 of the Hyderabad Prisons Rules came up for consideration before this Court in a decision in T.Nagi Reddy & Ramakrishnareddi v. State of A.P., Hyderabad[1], wherein it is held thus: (para 20)

          “The last request is for the use of a typewriter. The petitioners stated that they have to prepare for their defence . It is stated that the records are voluminous and copies have to be prepared for the use of their lawyers. I think, in view of this the request for permission to use a typewriter is justified. It is argued by the learned Government Pleader that under Rule 605 they can be supplied only and writing materiel and typewriter cannot be included in the expression writing material or stationery. I think in the context of the present day, when the typewriter is freely used for correspondence, a broad meaning has to be given to the expression stationery so as to include a typewriter. Apart from this Rule 610 says that unconnected criminal prisoners shall be allowed all reasonable facilities, at proper times and under proper restrictions, for interviewing or otherwise communicating either orally or in writing with their relatives friends and legal advisers. In view of the large volume of the record and necessity for getting the documents typed, it can be said that permission to use a typewriter would be a reasonable facility for communicating with their legal advisers and conducting the defence.”

          The above decision has no application to the facts of the present case.  By providing type-writer, there is no possibility of communicating secret information to outside persons or possibility of influencing the witnesses.

10.     Section 31 of the Prisons Act, 1894 reads thus:

          “A civil prisoner or an unconvicted criminal prisoner shall be permitted to maintain himself, and to purchase, or to receive from private sources at proper hours food, clothing, bedding or other necessities, but subject to examination and to such rules as may be approved by the Inspector General.”

          Section 33 of the Prisons Act, 1894 reads thus:

          “Every civil prisoner and unconvicted criminal prisoner unable to provide himself with sufficient clothing and bedding, shall be supplied by the Superintendent with such clothing and bedding as may be necessary.”

          Both these provisions would clearly go to show that other necessities, including food, clothing and bedding, can be given to the under-trial prisoner subject to examination.  

11.     Under Rule 504 of the Rules, 1979, writing materials including service post cards shall be supplied in reasonable quantities to any convict who has permission to write a letter and all letters shall be written at such time and place as the Superintendent may appoint.  A fixed day of the week, preferably Sunday, shall be set apart for letter writing service postage stamps shall be provided for prisoners’ letters.

          Similarly, under Rule 506 (1) of the Rules, 1979, unconvicted criminal prisoners and civil prisoners shall be granted all reasonable facilities at proper times and under proper restrictions for interviewing or otherwise communicating either orally or in writing with their relatives, friends and legal advisers.   Under Sub-Rule (3) of Rule 506, when any person desires an interview with an unconvincted criminal prisoner in the capacity of the prisoner’s legal adviser, he shall apply in writing giving his name and address and stating to what branch of the legal profession he belongs and he must satisfy the Superintendent that he is the bonafide legal adviser of the prisoner with whom he seeks an interview and that he has legitimate business with him.   Sub-Rule (4) of Rule 506 provides that any bonafide confidential written communication prepared by an unconvicted criminal prisoner as instructions to his legal adviser may be delivered personally to such legal adviser or to his authorized clerk without being previously examined by the Superintendent. 

So, Rules are passed to maintain jail discipline and administration and to the security of the State.   The main object of confining under-trial prisoners in jail is that they do not tamper with the evidence.

12.     Learned counsel for the petitioner relied on a decision in Charles Sobraj v. Supdt., Central Jail, Tihar, New Delhi[2], wherein it is held thus: (paras 5 and 6).

           “This proposition was not contested by the learned Additional Solicitor General Sri Soli Sorabjee. Nor does its soundness depend, for us, upon the Eighth Amendment to the U.S. Constitution. Art. 21, read with Art. 19 (1) (d) and (5), is capable of wider application than the imperial mischief which gave it birth and must draw its meaning from the evolving standards of decency and dignity that mark the progress of mature society, as Batra and Sobraj have underscored and the American Judges have highlighted. Fair procedure is the soul of Art. 21, reasonableness of the restriction is the essence of Art. 19 (5) and sweeping discretion degenerating into arbitrary discrimination is anathema for Art. 14. Constitutional karuna is thus injected into incarceratory strategy to produce prison justice. And as an annotation of Art. 21, this Court has adopted, in Kharak Singh's case (1964) 1 SCR 332 at p. 357 : ( AIR 1963 SC 1295 at p. 1305) that expanded connotation of 'life' giving by Field, J. which we quote as reminder :

"Something more than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body by the amputation of an arm or leg, or the putting out of an eye, or the destruction of any other organ of the body through which the soul communicates with the outer world."

             The next axiom of prison justice is the court's continuing duty and authority to ensure that the judicial warrant which deprives a person of his life or liberty is not exceeded, subverted or stultified. It is a sort of solemn covenant running with the power to sentence.”

          It is a case where under-trial prisoner was cruelly restricted in the manner which supports no relevant purpose and therefore the restriction was held to be unreasonable and arbitrary.  Therefore, the decision has no application to the facts of the present case.

13.     The learned counsel for the petitioner also placed reliance on a decision in Rama Murthy v. State of Karnataka[3], wherein it is held thus:  (para 3)

( 3. ) These are not the only decisions on the question of rights of prisoners and approach to be adopted while dealing with them as there are many other renderings of this Court which deal with some other aspects of prison justice. A brief resume of earlier decisions would be helpful to tread the path further. The resume reveals this :-

(1) In State of Maharashtra v. Prabhakar, AIR 1966 SC 424 : (1966) 1 SCR 702, and of Article 21 was made available perhaps for the first time to a prisoner while dealing with the question of his right of reading and writing books while in jail.

(2) Suresh Chandra v. State of Gujarat, (1976) 2 SCC 654 : (AIR 1976 SC 2462) and Krishan Lal v. State of Bihar, (1976) 1 SCC 655 : (AIR 1976 SC 1139) saw this Court stating about penological- innovation in the shape of parole to check recividism because of which liberal use of the same was recommended.

(3) A challenge was made to the segregation of prisoners in Bhuyan Mohan Pattnaik v. State of Andhra Pradesh. AIR 1974 SC 2092 : (1975 2 SCR 24 and a three Judge bench stated that resort to oppressive measures to curb political beliefs (the prisoner was a Naxalite because of which he was put in a 'quarantine' and subjected to inhuman treatment) could not be permitted. The Court, however, opined that a prisoner could not complain of installation of High-volt live wire mechanism on the jail walls to prevent escape from prisons, as no prisoner has fundamental right to escape from lawful custody.

(4) In Charles Sobraj (AIR 1978 SC 1514) it was stated that this Court would intervene even in prison administration when constitutional rights or statutory prescriptions are transgressed to the injury of a prisoner. In that case the complaint was against incarceratary torture.

(5) Sunil Batra (1) (AIR 1978 SC 1675), dealt with the question whether prisoners are entitled to all constitutional rights apart from fundamental rights. In that case this Court was called upon to decide as to when solitary confinement could be imposed on a prisoner. In Kishor Singh v. State of Rajasthan, AIR 1981SC 625 : 1081 (1) SCC 508, also the Court dealt with the parameters of solitary confinement.

(6) Prem Shankar v. Delhi Administration, AIR 1980 SC 1535 : 1980 (3) SCI 855 and Kadra Pahadiya v. State of Bihar, AIR 1981 SC 939 (1981)3 SCC 671, prohibited putting of undertrial prisoners in leg-irons.

(7) In Sunil Batra (II) (AIR 1980 SC 1579), the Court was called upon to deal with prison vices and the judgment protected the prisoners from these vices with the shield of Article 21, Krishna Iyer, J, stated that "prisons are built with the stones of law".

(8) A challenge was made to a prison rule which permitted only one interview in a month with the members of the family or legal advisor in Francis Goralic v. Union Territory of Delhi, AIR 1981 SC 746 : (1981) 2 SCR 516 and the rule was held violative, inter alia of Article 21.

(9) In series of cases, to wit, Veena Sethi v. State of Bihar, AIR 1983 SC 339 : 1982 (2) SCR 583; (ii) Sant Bir v. State of Bihar, AIR 1982 SC 1470: (1822) 3 SCC 131 and (ii) Sheela Barse v. Union Territory, (1993) 4 SCC 204 : (1993 AIR SCW 2908), this Court was called upon to decide as to when an insane person can be detained in a prison. In Sheela Barse it was held that jailing of non-criminal mentally ill persons is unconstitutional and directions were given to stop confinement of such persons.

It would be of some interest to point that in Sheela Barse an order was passed to acquaint the Chief Secretaries of every State with the decision and he was directed to furnish some information to the Standing Counsel of his State. On being found that State of Assam had not complied with the order, this Court appointed Sr. Advocate Shri Gopal Subramanium as its Commissioner by its order dated 13-5-1994 to have discussion with the Chief Secretary of that State and to ensure immediate obedience of the orders passed in that case, Shri Subramanium's voluminous report dated 15-9-1994 running into 532 pages tells a story too wet for tears. All concerned were found ignorant of the decision in Sheela Barse which was rendered in August 1993: and what is more a disturbing nexus between the judiciary, the police and the administration came to light. This was said to have led to a most shocking state of affairs negating the very basis of the existence of human life.

We do hope that by now all the States of the country must have acted as per the directions in Sheela Barse (1993 AIR SCW 2908).

(10) The judicial work done by this Court on the subject at hand would not be complete without mentioning what was held in Mohammad Glasuddin v. State of Andhra Pradesh. AIR 1977 SC 1926: (1978) 1 SCR 153, because in that case reformative aspect was emphasised by stating that the State has to rehabilitate rather than avenge. Krishna Iyer, J. speaking for a two-Judge Bench, pointed out that the "sub-culture that leads to anti-social behaviour has to be countered not by undue cruelty but by re-culturalisation."

(11) On top of all there is the undoubted right of speedy trial of undertrial prisoners, as held in a catena of cases of this Court, reference to which is not deemed necessary. Mention may only be made of the further leaves added to this right. These consist of ordering for release on bail where trial is protracted. The first decision in this regard is by a two-Judge bench in Supreme Court Legal Aid Committee representing Undertrial Prisoners v. Union of India, (1994) 6 SCC 731 (1994 AIR SCW 5115) wherein the bench was concerned with the detention of large number of persons in jail in connection with various offences under Narcotic Drugs and Psychotropic Substances Act,1985. The Court, after noting the stringent provisions relating to bail as incorporated in that Act, directed for release of those undertrial prisoners who were languishing in jail for a period exceeding half of the punishment provided in the Act. This decision was cited with approval by another two-Judge Bench in Shabeen Welfare Association v. Union of India, (1996) 2 SCC 616 : (1996 AIR SCW 1161), in which harsh provisions of TADA were borne in mind and the bench felt that a pragmatic and just approach was required to be adopted to release TADA detenues on bail because of delay in conclusions of trials. The Bench classified these undertrials in four categories and passed different orders relating to their release on bail.

         The above decision refers to various rights of under-trial prisoners.   Therefore, the ratio laid down in the above decisions is not directly applicable to the facts of the present case.

14.     There cannot be any dispute that the Prisons Act, 1894 applies to all prisoners including unter-trial prisoners, who are remanded to judicial custody under the orders of the Court.  The provisions of the Act and the Rules made thereunder are applicable to them.  The under-trial prisoners are governed by the said Act and the Rules and are entitled to whatever the facilities that were given to them.   

15.     In the decision relied on by the learned counsel for the petitioner in Charles Sobraj v. Superintendent, Central Jail, Tihar, New Delhi,[4] it is held that right to life of a prisoner is more than mere animal existence, or vegetable subsistence.  Therefore, the worth of the human person and dignity and divinity of every individual inform Articles 19 and 21 of the Constitution of India even in a prison setting, and that there must be correlation between deprivation of freedom and the legitimate functions of a correctional system.

16.     In a decision relied on by the learned counsel for the petitioner in Sunil Batra (II) v. Delhi Administration,[5] it is held that under-trial prisoners shall not be denied any of the community amenities including games, newspapers, books, moving around and meeting prisoners and visitors, subject to reasonable regulation of prison management.

17.     In another decision relied on by the learned counsel for the petitioner in Francil Mullin v. Union Territory of Delhi & ors.,[6] it is held that a person’s liberty must be curtailed with caution and must be proportional to necessity.     It noted that a prison rule may regulate the right of a detenue to have interview with a legal adviser in a manner which is reasonable, fair and just.  However, it cannot prescribe an arbitrary or unreasonable procedure for regulating such an interview as that would be violative of Articles 14 and 21 of the Constitution of India.   

18.     None of the amenities provided in the Jail Manual or in Prison Rules to the under-trial prisoners is violated in this case.  It is also not the grievance of the petitioner that the rights conferred upon under-trial prisoners as per the Prisons Act, 1894 and the Rules made thereunder, have been violated or infringed.  The only ground taken by the petitioner in this Criminal Petition for permission to use a laptop/computer is to give necessary instructions to the counsel for preparation of affidavits/petitions/counters to be filed before various authorities in the pending cases.  In the absence of any Rule in the Andhra Pradesh Prisons Rules, 1979 for giving permission to an under-trial prisoner to use laptop/computer for giving instructions to his counsel, such a permission cannot be given.    As the petitioner is in judicial custody, he can as well give instructions to his counsel whenever they seek interview with him and he can also give written instructions by writing on papers, for preparation of affidavits/petitions/counters.  By allowing the petitioner to use pen drive/compact disc/ Universal Serial Bus (USB), there is every possibility of using them for the purpose other than it was permitted to be used.  Since the case is under investigation, apprehension of the prosecution is that by using laptop/computer, the petitioner may influence the witnesses by accessing internet.  

19.     No doubt, internet disabled laptop/computer, if given, it may not be possible for the petitioner to influence the witnesses, but, at the same time, technology has so developed that there is every possibility for using the internet facility by Wify by using strong modem outside the jail premises, even if laptop/computer is disabled.    It is the further apprehension of the respondent-CBI that due to latest technology, the accused may have access to the internet within India and outside the world by using data cards and further use of such data cards will not have any security check and they can be passed on to the accused by visitors meeting him.    This apprehension of the respondent-CBI appears to be correct in view of the vast development in science and technology.   So long as the use of laptop/computer is not misused, it may be useful for any prisoner, including under-trial prisoner, but, at the same time, there is every likelihood of misusing of the facility if the same is provided to the petitioner.  In these circumstances, the possibility of misusing the laptop/computer by the petitioner, as apprehended by the respondent-CBI, cannot be ruled out.   No provision or rule under the Prisons Act or A.P. Prison Rules is brought to the notice of this Court about use of electronic and computer devices much less a laptop can be permitted to be used by under trial prisoner.

20.     Rights of the prisoners have to be balanced with that of the investigating agency so that there can be a fair trial after investigation is completed.  The petitioner will be having other modes of communicating his defence or revealing facts which are necessary for preparation of affidavits/petitions/counters to be filed before various authorities. Even if the laptop/computer is not provided, the petitioner would not be deprived of his right to defend his case.  No doubt, rights of accused to defend himself in a criminal prosecution is a valuable right conferred on him. But, that stage has not come in this case.   During trial of the case, the accused will be having a full-fledged opportunity to defend him even if the case involves voluminous record.  The stage of investigation, generally, includes proceeding to the spot, ascertaining the facts and circumstances, discovery and arrest of suspected offender, collection of evidence which may consists of examination of accused, recording statements, if thought fit, search of a place and seizure of incriminating material and consideration whether the materials are enough for submitting charge sheet.  So, at this stage, it is not desirable to give permission to the petitioner to use laptop/computer as the use of the same may be in the interest of the petitioner, but not serving the actual purpose of his defence.  It is not a fit case to grant the relief sought for by the petitioner in the trial court and there are no grounds to interfere with the order under challenge.

21.     The Criminal Petition is devoid of merit and is, accordingly, dismissed.

________________

(K.C.BHANU, J.)

15.02.2012

DRK

THE HON'BLE SRI JUSTICE K.C.BHANU

            CRIMINAL PETITION NO.  1031 OF 2012

           Date:       15 .02.2012

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[1] AIR 1971 Andhra Pradesh 405

[2] (1978) 4 Supreme Court Cases 104

[3] (1997) 2 Supreme Court Cases 642

[4] AIR 1978 SC 1514

[5] AIR 1980 SC 1579

[6] AIR 1981 SC 746a

Once the accused was produced before the CBI Court, it is only for that Court, to take further steps, be it as regards the grant of police custody, or extension thereof. Whatever be the permissibility for a Court, that is kept incharge of another ordinary criminal Court to take various steps in a case pending before such criminal Court, an exercise of that nature can not be undertaken, in respect of a case pending before a Court, specially constituted under a specific provision of law.

* HON’BLE SRI JUSTICE L.NARASIMHA REDDY

+ CRIMINAL PETITION NO. 662 OF 2012

% 12-01-2012

# 1.    V.Vijaya Sai Reddy

S/o Late V.Sundar Rami Reddy,

Aged about 52 years,

Occ: Chartered Accountant,

R/o 43-1, Film Nagar,

Road No.71, Jubilee Hills,

Hyderabad.

… Petitioner

Vs.

$ 1.    Central Bureau of Investigation,

Anti Corruption Branch,

Dilkush Guest House,

Raj Bhavan Road, Somajiguda,

Hyderabad.

… Respondent

! Counsel for the Petitioner:               Sri S.Niranjan Reddy,

Advocate.

   Counsel for the Respondent:          Sri P.Kesava Rao,

                                                       Standing Counsel for CBI

< Gist:

> Head Note:

 ? Cases referred:

1. 2008 CRI.L.J. 337(1)

2. 1976 CRI.L.J. 1511

3. 2001 CRI.L.J. 3678

THE HON’BLE MR. JUSTICE L. NARASIMHA REDDY

CRIMINAL PETITION No.662 of 2012

ORDER:

          The petitioner challenges the order dated 10.01.2012 in Crl.M.P.No.58 of 2012 in Crl.M.P.No.27 of 2012 in R.C.No.19(A) of 2011 CBI HYD., on the file of the Court of Special Judge for CBI Cases, Hyderabad (for short “the CBI Court”). 

The respondent herein registered an F.I.R. bearing R.C.No.19(A) of 2011 CBI HYD against the petitioner (A-2) and others alleging crimes punishable under various provisions of the Prevention of Corruption Act, 1988 (for short “the Act”).  Petitioner was produced before the CBI Court on 03.01.2012.  That Court remanded the petitioner to judicial custody for 15 days.  On the same day, the respondent filed Crl.M.P.No.27 of 2012, seeking police custody.  Hearing of that application was taken up on 04.01.2012 and the custody of the petitioner was given to the respondent for a period of five days, by imposing certain conditions.  A direction was issued to the effect that the petitioner shall be produced before the Court on 10.01.2012 to, and the question as to whether the police custody needs to be extended, shall be considered on that day.      The respondent filed Crl.M.P.No.58 of 2012 seeking extension of police custody for further period of 7 days.  On that day, the learned Presiding Officer of the CBI Court was on leave.  The Special Judge for Economic Offences-cum-VIII Metropolitan Sessions Judge, Hyderabad (for short “Incharge Judge”) was placed incharge of that Court.  Crl.M.P.No.58 of 2012 was taken up for hearing, on that day. 

          The respondent raised an objection as to the jurisdiction of the Incharge Judge to deal with the application.  Reliance was placed upon an order passed by this Court in Crl.P.No.7134 of 2010.  Overruling the objection, the incharge Court proceeded to hear the application and extended the police custody of the petitioner, by 7 days, through the order under challenge. 

          Sri S.Niranjan Reddy, learned counsel for petitioner submits that the learned Incharge Judge did not have jurisdiction to hear the Crl.M.P.No.58 of 2011.  He contends that the CBI Court is constituted under a Notification issued by the Central Government in exercise of power under Section 3 of the Act and it is only the learned Presiding Officer of that Court, who can deal with the applications for custody or for other reliefs.  He submits that the Sub-Section (2) of Section 167 of the Criminal Procedure Code, 1973 (for short “the Code”) will get attracted only when an accused is produced for the first time, before a Court, not having jurisdiction; on account of non-availability of the Presiding Officer of the Court, which is specially constituted and not when the judicial custody as well as police custody were already ordered by the Court, so constituted.  Learned counsel submits that even on merits, the impugned order cannot be sustained. 

          Sri P.Kesava Rao, learned Standing Counsel for CBI, on the other hand, submits that the impugned order does not suffer from any legal or factual infirmity.  He contends that Sub-Section (2) of Section 167 of the Code cannot be given a restricted interpretation.  He contends that except that the custody cannot exceed 15 days, it is competent for a Magistrate, who does not have jurisdiction to deal with the matter, to grant police custody even if the initial production was before the specially constituted Court.  He submits that the order passed by this Court in Crl.P.No.7134 of 2010 is referable to a case in post-trial stage and that the ratio laid down therein, does not apply to a case at the pre-trial stage. He has placed reliance upon the judgment of the Supreme Court in Dinesh Dalmia v. C.B.I.[1].

         

The point that arises for consideration is as to whether the Special Judge for Economic Offences (Incharge Judge) had the jurisdiction to pass the order challenged in the petition filed under Section 482 of the Code.

         

It is not in dispute that the case against the petitioner is triable by the CBI Court.  As a matter of fact, not only the petitioner was produced before that Court and the police custody was sought before it by filing Crl.M.P.No.27 of 2012 custody of 5 days was given to the respondent.  Crl.M.P.No.58 of 2012 was filed seeking extension of police custody. This application was allowed by the learned Incharge Judge. 

          It becomes relevant to take note of Sub-Sections (1) and (2) of Section 167 of the Code:

167. Procedure when investigation cannot be completed in twenty-four hours

(1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 57, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.

(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:

          A perusal of Sub-Section (2) of Section 167 of the Code makes it clear that in case an accused was liable to be produced before a particular Court and the Presiding Officer of that Court is not available at the time of production, he can be produced before a Magistrate, who does not have jurisdiction and such Court is conferred with the power to order custody of whatever type, for a period, not exceeding 15 days. 

          The CBI Court is a specially constituted one, under the Act, through a notification issued by the Central Government.  Other Courts cannot be kept incharge of it, to discharge the same functions as does the regular Court.  On 10.01.2012 the petitioner was produced before the Court.  On that day the Presiding Officer was not available and the petitioner was produced before the Special Judge for Economic Offences, who was kept incharge of the CBI Court.

          Had the production before the Special Judge been at the initial stage, no exception could have been taken.  The petitioner was already produced before the regular CBI Court and his custody was to the police given for a limited period.  Once the matter is in session of the CBI Court, it was not competent for the Special Judge, who was only an incharge, to exercise powers under Sub-Section (2) of Section 167 of the Code, and grant extension of police custody. 

          In Singeshwar Singh And Ors. V. State of Bihar And Ors.[2], a Division Bench of the Patna High Court explained the purport of Sub-Section (2) of Section 167 of the Code.  The same High Court examined the question as to whether a Vacation Judge can grant anticipatory bail to a person, accused of committing offences defined under the Prevention of Corruption Act, 1988.  In its judgment in State of Bihar v. Braj Nandan Raut[3], the High Court held as under:

“16.       From the facts discussed above, it is manifestly clear that the learned Vacation/Sessions Judge, Gaya was not vested with the power of Special Judge, as required under S.3 of the Act and, therefore, it was not the Court of the Special Judge under the meaning of S.4 of the Act and therefore, it necessarily follows that the learned Vacation/Sessions Judge, Gaya had no jurisdiction to dispose of the anticipatory bail applications so filed by the accused persons.  The question is answered accordingly.  The order impugned, in that view of the matter, must be held to be wholly without jurisdiction as the power under S.438 of the Code of Criminal Procedure in the given case was exercised by the Court concerned admittedly who had no power to do so as the case was relating to the offences under the P.C. Act of 1988.”

         

This Court followed the said ratio in Crl.P.No.7134 of 2010 through order dated 01.10.2010.  The facts of this case warrant application of the said principle. 

Sri P.Kesava Rao, learned counsel for the respondent sought to distinguish by pleading that it pertains to the stage, after the cognisance was taken, that however hardly makes any difference. 

          Sub-Section (2) of Section 167 of Cr.P.C. does not give scope for any conferment of power upon a Court, which otherwise has no jurisdiction, to intervene in the proceedings, which are already before the regular Court constituted under the Act.  The only occasion on which a Magistrate can order custody is if the Presiding Officer of the regular Court i.e. CBI Court not available, when an accused is produced for the first time.  Once the accused was produced before the CBI Court, it is only for that Court, to take further steps, be it as regards the grant of police custody, or extension thereof.  Whatever be the permissibility for a Court, that is kept incharge of another ordinary criminal Court to take various steps in a case pending before such criminal Court, an exercise of that nature can not be undertaken, in respect of a case pending before a Court, specially constituted under a specific provision of law. 

          The judgment of the Supreme Court in Dinesh Dalmia’s case is not directly on the point. 

Though the submissions are made on merits also, this Court is not inclined to delve into the same.  Even now the respondent can move an application before the CBI Court for extension of police custody. 

For the foregoing reasons, the criminal petition is allowed and the order under challenge is set aside.  It is left open to the respondent to move an application seeking extension of the police custody before the Court of Special Judge for CBI Cases, Hyderabad.  In view of the fact that the police custody cannot be sought after expiry of 15 days from the date of initial production, the learned Presiding Officer of the Special Court for CBI Cases, shall take up the application if presented and pass appropriate orders on the same day. 

                                        

______________________

                                                          L.NARASIMHA REDDY, J

12-01-2012

Note: LR copy to be marked

B/o MR.

 

 THE HONOURABLE SRI JUSTICE L. NARASIMHA REDDY

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

CRIMINAL PETITION No. 662 of 2012

DATE: 12-01-2012

MR

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[1] 2008 CRI.L.J. 337(1)

[2] 1976 CRI.L.J. 1511

[3] 2001 CRI.L.J. 3678