Yogesh Chandegala And Ors vs Union Of India And Ors
2021 Latest Caselaw 6190 Bom

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ISM
                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                            CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL WRIT PETITION NO. 1689 OF 2021

      Yogesh Chandegala and others                                 ....Petitioners

              V/s.

      Union of India and others                                    .....Respondents

      Mr. Amit Desai, Senior counsel a/w Mr. Pranav Badheka i/b Ms.
      Megha S. Gupta for the Petitioners
      Mr. Anil C. Singh, ASG a/w Mr. Aditya Thakkar a/w Mr. D. P. Singh
      for Union of India.
      Mr. Deepak Thakre PP a/w Mr. S. R. Shinde APP for the State


                               CORAM :   S. S. SHINDE &
                                         MANISH PITALE, JJ.

                               DATE:     APRIL 7, 2021.

      P.C.:

      1]      Learned senior counsel Mr. Amit Desai for the petitioners stated

at the outset that the petitioner Nos. 1 to 3 have approached the

Hon'ble Supreme Court in connection with summons issued

pertaining to the same ECIR, in respect of which present petition is

filed. But it is clarified that the writ petition filed under Article 32 of

the Constitution of India before the Supreme Court pertains to the

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stage prior to completion of investigation and filing of complaint by

Respondent No. 2- The Directorate of Enforcement under the

provisions of Prevention of Money-Laundering Act 2002 (Hereinafter

referred to as 'PMLA'). It is submitted that the petitioners have

approached the Supreme Court when summons were issued to them

in November 2020 and order of no coercive action was granted in

favour of petitioner Nos. 1 to 3 by the Supreme Court and that the

the said writ petition is still pending.

2] It is brought to the notice of this Court that the contentions

being raised in the present writ petition are different from the issues

being raised before the Supreme Court in the said pending writ

petition and that therefore, present writ petition needs to be

considered independently.

3] Learned senior counsel has invited our attention to the grounds

raised in the present writ petition to contend that investigation and

consequent summons issued against the petitioners are wholly

malicious and unsustainable. It is contended that respondent no. 2 is

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acting maliciously for the reason that matters pertaining to a period

about 8 years ago have been raked up to issue summons under

provisions of PMLA.

4] Apart from this, a specific question of law is raised in the

present writ petition. It is contended by the learned senior counsel

that ECIR bearing No. ECIR/1/MBZO-I/40/2020 was registered and

investigation was undertaken by respondent no. 2. Pursuant to

conclusion of investigation, respondent no. 2 filed a complaint before

the Designated Court under the PMLA against five named accused

persons. It was emphasized that none of the Petitioners before this

court have been arraigned as accused in the said complaint/special

case filed at the behest of respondent no. 2 before the Designated

Court.

5] It is further submitted that in the said complaint dated

19.12.2020, filed before the Designated Court, apart from making a

prayer for taking cognizance of offences under the aforesaid Act

against named accused persons, a specific prayer was made before

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the said Court seeking leave for conducting further investigation and

to file supplementary complaints in due course of time. Attention of

this Court was then invited to order dated 16.1.2021 passed by the

Designated Court whereby the said Court issued process against five

named accused persons. It was specifically emphasized by the

learned senior counsel appearing for the petitioners that leave sought

for further investigation was not pressed and it was not expressly

granted by the Designated Court in the said order.

6] Learned senior counsel further invited attention of this Court to

another order dated 16.1.2021 passed by the Designated Court in

Bail Application filed by one of the five named accused persons to

submit that it was specifically in the knowledge of the Designated

Court that the said accused person seeking bail before the

Designated Court had claimed that respondent no. 2 was

pressurizing him to implicate petitioner No. 2 in the said case.

7] Learned senior counsel then relied upon the Judgment of the

Hon'ble Supreme Court in the case of Vinubhai Haribhai Malaviya

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and Ors. Vs. The State of Gujrat [Judgment and Order dated

16.10.2019 in Criminal Appeal No. 478-479 of 2017] to contend that

when the Designated Court had not granted express permission for

further investigation to the respondent no. 2, the impugned

summons dated 15.3.2021 could not have been issued by respondent

no. 2 to the petitioner nos. 2 and 4 in the same ECIR. According to

the learned senior counsel appearing for the petitioners, the said

Judgment of the Supreme Court elaborately laid down that powers of

the Designated Court in the present case were traceable in Sections

156(3) r/w Section 156(1) and Section 173(8) of the Code of Criminal

Procedure, 1973 and that in the absence of express permission of the

Designated Court, no further investigation could have been

undertaken by respondent no. 2 and that therefore, impugned

summons are wholly unsustainable.

8] On the basis of aforesaid submissions, Mr. Desai, learned

senior counsel for the petitioners, submitted that this Court may

grant Ad-interim relief in terms of prayer clause (g) in the petition i.e.

stay of further investigation against the petitioners in respect of the

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said ECIR and an order to the respondent no. 2 restraining it from

arresting or taking any coercive steps against the petitioner no. 4 in

respect of the ECIR.

9] In response to the aforesaid contentions, Mr. Anil Singh,

learned ASG appearing on behalf of respondent nos. 1 & 2

vehemently opposed the same. He contended that observations made

by the Supreme Court in the case of Vinubhai Haribhai [cited supra]

have to be read in the context of the question that came up for

consideration. By inviting our attention to specific paragraphs of the

said Judgment, learned ASG, submitted that power of investigating

authority to carry out further investigation under Section 173 (8) of

Cr.P.C. was not abridged in any manner. The paragraphs specifically

relied upon the learned ASG from the aforesaid Judgment of the

Supreme Court in the case of Vinubhai Haribhai [cited supra] are as

follows:

"9. The question of law that therefore arises in this case is whether, after a charge-sheet is filed by the police, the Magistrate has the power to order further investigation, and if so, up to what stage of a criminal proceeding."

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"19. With the introduction of Section 173(8) in the CrPC, the police department has been armed with the power to further investigate an offence even after a police report has been forwarded to the Magistrate. Quite obviously, this power continues until the trial can be said to commence in a criminal case. The vexed question before us is as to whether the Magistrate can order further investigation after a police report has been forwarded to him under Section 173."

10] Additionally, learned ASG relied upon the Judgment of the

Supreme Court in the case of State of Andhra Pradesh V. A. S. Peter

[(2008) 2 Supreme Court Cases 383] particularly paragraph 9

thereof, which reads thus:

"9. Indisputably, the law does not mandate taking of prior permission from the Magistrate for further investigation. Carrying out of a further investigation even after filing of the charge-sheet is a statutory right of the police. A distinction also exists between further investigation and reinvestigation. Whereas reinvestigation without prior permission is necessarily forbidden, further investigation is not."

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11] Learned ASG further invited our attention to the responses

given by petitioner nos. 2 and 4 to the summons issued to them, in

order to demonstrate that they had assured respondent no. 2 about

co-operation and yet they have claimed in the present writ petition

that further investigation itself is not sustainable. According to

learned ASG, the said conduct of petitioner nos. 2 and 4 clearly

indicates their non-cooperation and hence, they do not deserve any

interim protection in the present case.

12] We have considered the contentions raised on behalf of the rival

parties. A perusal of complaint dated 19.12.2020 filed by respondent

no. 2 before the Designated Court shows that the following prayer

was specifically made therein:

"11.3 Investigation is still in progress in respect of other transactions/persons/entities/properties. The Complainant craves leave of this Hon'ble Court for conducting further investigation and as and when investigation is complete in other aspects, to file supplementary complaint(s) in due course, if any."

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13] Perusal of the order dated 16.1.2021 passed by the Designated

Court issuing process against five named accused persons shows

that there is no express permission granted by the Designated Court

for leave to undertake further investigation concerning the said ECIR,

despite the above quoted specific prayer made on behalf of

respondent no. 2.

14] In the aforementioned Judgment of the Supreme Court in the

case of Vinubhai Haribhai [cited supra] after referring to earlier

Judgment of the Supreme Court in the case of Vinay Tyagi Vs. Irshad

ali alias Deepak and Ors. [(2013) 5 Supreme Court Cases 762], the

Supreme Court held that leave of the Court was necessary for

undertaking further investigation in order to file supplementary

reports. Supreme Court specifically held as under:

"38. There is no good reason given by the Court in these decisions as to why a Magistrate's powers to order further investigation would suddenly cease upon process being issued, and an accused appearing before the Magistrate, while concomitanty, the power of the police to further investigate the offence continues night till the

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stage the trial commences. Such a view would not accord with the earlier judgments of this Court, in particular, Sakiri (supra), Samaj Parivartan Samudaya (supra), Vinay Tyagi (supra), and Hardeep Singh (supra); Hardeep Singh (supra) having clearly held that a criminal trial does not begin after cognizance is taken, but only after charges are framed. What is not given any importance at all in the recent judgments of this Court is Article 21 of the Constitution and the fact that the Article demands no less than a fair and just investigation. To say that a fair and just investigation would lead to the conclusion that the police retain the power, subject, of course, to the Magistrate's nod under Section 173(8) to further investigate an offence till charges are framed, but that the supervisory jurisdiction of the Magistrate suddenly ceases mid way through the pre-trial proceedings, would amount to a travesty of justice, as certain cases may cry out for further investigation so that an innocent person is not wrongly arraigned as an accused or that a prima facie guilty person is not so left out. There is no warrant for such a narrow and restrictive view of the powers of the Magistrate, particularly when such powers are traceable to Section 156(3) read with Section 156(1), Section 2(h), and Section 173(8) of the CrPC, as has been noticed hereinabove, and would be available at all stages of the progress of a criminal case before the trial actually commences. It would also be in the interest of justice that this power be exercised suo motu by the Magistrate

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himself, depending on the facts of each case. Whether further investigation should or should not be ordered is within the discretion of the learned Magistrate who will exercise such discretion on the facts of each case and in accordance with law. If, for example, fresh facts come to light which would lead to inculpating or exculpating certain persons, arriving at the truth and doing substantial justice in a criminal case are more important than avoiding further delay being caused in concluding the criminal proceeding, as was held in Hasanbhai Valibhai Qureshi (supra). Therefore, to the extent that the judgments in Amrutbhai Shambubhai Patel (supra), Athul Rao (supra) and Bikash Ranjan Rout (supra) have held to the contrary, they stand overruled. Needless to add, Randhir Singh Rana v. State (Delhi Administration) (1997) 1 SCC 361 and Reeta Nag V. State of West Bengal and Ors (2009) 9 SCC 129 also stand overruled."

15] On the basis of the rival contentions, we find that an arguable

issue arises in the present case, which needs consideration. There is

no dispute about the fact that petitioner nos. 1 to 3 are already

enjoying an order of interim protection given by the Supreme Court in

the pending writ petition. It is only the petitioner no. 4 who is

presently apprehending coercive action in pursuance to summons

issued by respondent no. 2.

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16] In view of the contentions raised on behalf of rival parties, we

are of the opinion that further investigation undertaken by

respondent no. 2 can proceed, subject to the result of the present

writ petition. The petitioner no. 4 can be granted limited protection

subject to his extending cooperation to respondent no. 2, in response

to the impugned summons.

17] In view of above, issue notice to respondents, returnable on

30.04.2021. Mr. D. P. Singh waives service of notice for respondent

nos. 1 and 2 and Mr. S. R. Shinde, learned APP waives service of

notice on behalf of respondent no. 3.

18] In the meanwhile, further investigation by respondent no. 2

may continue, subject to result of the present writ petition. No

coercive action be taken against petitioner no. 4, till the returnable

date subject to the said petitioner cooperating with respondent no. 2.

   [MANISH PITALE, J.]                      [S. S. SHINDE, J.]