State Through Central Bureau Of ... vs K. Chandra
1994 Latest Caselaw 615 Del

JUDGMENT

Arun Kumar, J.

(1) The present petition has been filed under Section 482 Crl.P.C. by the State against the order dated 12th July 1994 passed by Shri V.B.Gupta, Special Judge, Delhi, granting permission to the respondent to go to U.S.A., Germany and Taiwan with effect from 15th September 1994 to 31st October 1994. The permission has been granted subject to certain conditions spelled out in the impugned order.

(2) The respondent was arrested on 7.8.1992 by the C.B.I, in case R.C.No.2(A)/92 but was granted bail on 29th September 1992 by this Court. One of the conditions of bail was that the respondent shall not leave the country without prior permission of the Court. The respondent applied for permission to go to abroad which was granted by the Special Judge vide order dated 17.3.1993. However, on 18.3.1993 he was arrested in connection with another case R.C.No.4(A)/92. In the said case also he was granted bail on 29.3.1993.

(3) The respondent made applications in both the cases for permission to go to U.S.A., Germany & Taiwan. However, vide order dated 28th May 1993 the applications of the respondent for permission to go abroad were dismissed by the Special Judge, Delhi. The respondent challenged the said order in this court by way of a petition under Section 482 Criminal Procedure Code . The petition was dismissed vide order dated 8th September 1993. This court, however, directed the C.B.I, to complete the investigations with expedition. The respondent again applied for permission to go abroad, on 27th November 1993. The said application was dismissed by the Special Judge on 17th January 1994. The respondent again applied on 19th April 1993 for permission to go abroad. On the said application the learned Special Judge passed the impugned order dated 12th July 1994 permitting the respondent to go to U.S.A., Germany & Taiwan with effect from 15th September 1994 to 31st October 1994.

(4) The petitioner has challenged the order of the learned Special Judge mainly on the ground that in the interest of continued unhindered investigation it is of paramount importance that the respondent should not be permitted to go abroad at this juncture. Investigation is still on. Letters of Rogatory have been issued by the court for purposes of collecting evidence in U.S.A. and other countries and the process of collection of evidence is already on. It is further alleged that in the past the respondent has been causing hindrance in the progress of investigation and, therefore, he should not be allowed to go abroad. Secondly, the application is opposed on the ground that the respondent, his wife and children are all U.S. citizens holding U.S. passports and if the respondent is permitted to go abroad it will be virtually impossible to get him back if he chooses not to return to this country and face trial. It is further alleged that the respondent is facing serious charges including conspiracy in the matter of siphoning funds worth crores of rupees. In R.C.No.4(A)/92 the allegation against the respondent is stated to be "that in the year 1982 Shri Krishnamurthy, son of Mr.R.venkataraman, resident ofAB-12, Pandara Road, New Delhi while functioning as Dy.Chairman and Managing Director of Maruti Udyog Ltd., entered into a criminal conspiracy with his sons, namely, K.Chandra, the respondent and Mr. K.Jayakar and also with one Binay Jacob, resident of C- 559, New Friends Colony, New Delhi and with others with the object to receive bribe money from various multinationals for the business done by them with the companies/organizations under the central and influence of Shri V.Krishnamurthy by abusing his official position as a public servant and also to syphon out the illegal money so received by them from multinationals. M/s Apten Marketing and Management Services Pvt.Ltd. was set up in 1982 by K.Jayakar, son of V.Krishnamurthy, Binay Jacob and one S.Prem Kumar white M/s Apton Corporation was flatted on 1.8.1984 by Binay Jacob and one K.Chandra That in order to receive more bribe money on account of the abuse of official position by V.Krishnamurthy as a public servant K. Chandra Sandy, elder son of V.Krishnamurthy, a Us citizen and Biney Jacob, through his assignee David J.Barrott of Hongkong set up another company in the name and style of M/s Link Universe Co. Ltd. Hongkong in 1985 and both K.Chandra and David J.Barrett became its Director on 27.7.1985. M/s Link Universe Co.Ltd. which was functioning as an off share company, received huge amounts of bribe running into over 10 millions Us dollars which they deposited in several bank accounts in the name of M/s Link Universe Co.Ltd., Hong Kong and others and transferred the same to different bank accounts and persons during the period 1985 to 1991.

(5) It has been revealed during the course of investigation that in pursuance of the said criminal conspiracy, K.Chandra, K. Jaykar and Binay Jacob etc. either jointly or severally opened different bank accounts in Hong Kong, Macau, Singapore, Australia, Japan, Switzerland and Usa etc. and deposited the bribe money as received by them for and on behalf of V.Krishnamurthy and further diverted the same to themselves either directly or through some other bank accounts/persons.

(6) The learned counsel for the petitioner has urged that if the respondent is allowed to go abroad, he will tamper with the evidence. At this crucial stage of investigation he may cause suppression or disappearance of evidence. This allegation they have tiled to fortify by sta ting that the respondent had earlier approached two important witnesses in London and Hong Kong and offered them huge amounts in foreign currency as bribe with a view to tamper with the evidence in the case.

(7) The respondent has mainly based his prayer to go abroad on the ground that his business interests abroad are suffering due to his prolonged absence. Further he has obligation to file statutory returns in- cluding statements before banks as well as Income Tax returns. In his ab- sence this work cannot be completed. The respondent has further urged that he owns a company named Ergodyne which is situated in New Jersey, U.S.A. On account of continuous absence of the respondent the said company is said to be facing innumerable operational and financial problems. The respondent is the signatory regarding certain loan documents executed With U.S. banks to establish credits for the said company. The company is losing business because of the absence of the respondent. Or- ders of the company worth 250 thousand dollars have been lost only because the respondent who is the owner of the company could not meet the officials of the company and organise agency agreements. For these various reasons connected with hi5 wide business interests abroad the respondent has sought per- mission to go abroad. The respondent has also relied on some fax messages from his solicitors and from his firm requiring him to visit U.S.A. urgently.

(8) The learned counsel for the respondent has vehemently contended that the investigation may take along time and this cannot mean that the respondent has to stay back in India till the investigation is completed and in that process allow his business interests to get ruined.

(9) Before proceeding further I may deal with the preliminary objection raised on behalf of the respondent regarding maintainability of the present petition. It is submitted that the impugned order is an interlocutory order and a revision against such an order is clearly barred under section 397(2) Criminal Procedure Code . Relying on the judgment of the Supreme Court in Madhu Limaye's case, , it is submitted that when a revision is specifically barred against an interlocutory order of the present type by the statute, inherent powers of this court cannot be invoked under section 482 Criminal Procedure Code . A reference to the said judgment shows that the Supreme Court has observed after discussing the relevant statutory provisions that in a case of clear abuse of process of the court and/or for purposes of securing ends of justice, interference by the High Court may become absolutely necessary arid in such situations nothing contained in Section 397(2) Criminal Procedure Code . can limit or effect the exercise of the inherent power by the High Court. Of course the Supreme Court has added a note of caution that such occasions should be few and High Court must exercise the inherent power very sparingly. Thus it is clear that there is no absolute bar to the exercise of inherent power by this Court under section 482 Criminal Procedure Code . In the facts and circumstances of the case I am of the considered view that this is a case in which occasion has arisen for this court to invoke its inherent power under Section 482 Criminal Procedure Code . I may only mention that on an earlier occasion when the trial judge dismissed the application of the respondent to travel abroad, the respondent had himself invoked the jurisdiction of this court under section 482 Criminal Procedure Code .

(10) Coming to the merits, the first and foremost point to be noted is that in almost all previous orders on the applications of the respondent for permission to travel abroad including the order of this court dated 8.9.1993 the interest of unhindered investigation has received paramount consideration and it is for this reason that on the earlier occasions the permission was refused. In the previous orders directions have been issued for expediting the investigation. However, the petitioner submits that since the investigation is being carried on in foreign countries, the matter is not within their hands. On its part the petitioner says it is doing its best to expedite the completion of investigation. It is pertinent to note here, that there is no allegation against the investigating agency of deliberately trying to delay investigation.

(11) Regarding the reasons advanced on behalf of the respondent for the urgent need for him to go abroad it is to be seen that execution of documents, signing Income Tax returns or other statutory returns are not things which cannot be done without going to the country concerned. The documents can come to India for execution by the respondent. The respondent has at his command all the modern communication facilities which include telephone, fax, telex etc. Besides this the respondent can appoint power of attorney if so advised. Where ever meeting some persons is absolutely necessary such persons can be called here. On his own showing the respondent is in big business and such facilities or amenities to him do not mean much. Inspite of all this I am prepared to consider that there may still be need for the respondent to be, personally present to watch his business interests. But the question is are the business interests of the respondent paramount or the interest of unhindered investigation are paramount? And this has to be seen in the background of the fact that all the previous orders of the courts dealing with respondent's applications for permission to go abroad have been dealt with on the basis of paramountcy of interests of unhindered investigation. Again the allegation that the respondent has in the past tried to influence witnesses and tamper with evidence cannot be over- looked. The respondent is charged of serious offences involving financial irregularities and siphoning away of funds through devious means. When such serious allegations are there, interests of unhindered investigation do require that the investigation should be allowed to be completed before the respondent is allowed to go abroad. Important evidence has to come from abroad for which the process is already on. In this connection it has been contended on behalf of the respondent that the evidence sought to be collected is all documentary and there is no chance of the respondent tampering with the same. I am unable to accept this reasoning. Effort to suppress the evidence or to ensure that the evidence does not surface can be made in relation to documentary evidence.

(12) In support of his case the respondent has relied on some fax messages from his officers and from his solicitors. Without commenting on the veracity of these messages, it may be noted that such messages can be procured. The messages are coming from one's own sources and not from an independent outside agency. The respondent says that on account of his absence his business in New Jersey is suffering. Does that mean that the respondent should be allowed to stay in New Jersey to carry on day- to-day business? As already observed business considerations cannot be given primacy over the consideration of unhindered investigation. There are cases of single bread winners of families languishing in jail where bail is sought on the ground that the only daily wage earner should be released because in his absence the family is starving and still depending on the nature of offence and other considerations bail is refused. Therefore, business interest cannot be put in the forefront.

(13) Counsel for the respondent further urged that the court had earlier given four months' time to the Investigating Agency to complete investigation and as per the previous order after the expiry of four months the respondent is entitled to bail in the light of the said order. A reference to the previous orders in this case shows that the matter has never been foreclosed by the court. The matter has always to be considered at the relevant time in the light of facts then in existence. If the Investigating Agency is able to satisfy the court that genuine efforts are being made to complete the investigation and delay is beyond its control the court may still allow more time for that purpose. I do not think that the previous orders have in any way fettered the discretion of the court in reconsidering the whole issue.

(14) Although in some of the previous orders the other ground mentioned by the petitioner for not allowing the respondent to go abroad has been noted, yet I do not think that any of the previous orders have proceeded on that ground. However, I consider that the said other ground is also equally important and has to be given due weightage before permitting the respondent to go abroad. This ground is that the respondent may flee from the country and may not return to face the trial. In this connection it has been pointed out by the petitioner that the respondent, his wife and his children are U.S. citizens holding U.S. passports. Admittedly the respondent has extensive business interests in foreign countries and he may not return to India. It is also mentioned that the brother of the respondent, namely,K. Jaykar who is involved in all the business affairs with the respondent and is also an accused in the cases, has fled the country. He is also a U.S. citizen and he is not returning to this country to join investigation and trial. The counsel for the petitioner submits that as the legal provisions stand it is very difficult, almost impossible, to get a foreign citizen extradited in such circumstances. To counter these apprehensions of the petitioner the learned counsel for the respondent submitted that the wife of the respondent is in India, his children are studying in India. He has offered that their passports can be deposited with the petitioner. He submits that he has roots in India, his parents are in India. He has assets worth about rupees two crores in India for which he files Wealth Tax returns. Such a person cannot be expected to flee the country. It appears that it was for this reason that the trial court has imposed certain conditions on the respondent while permitting him to travel abroad.

(15) There can be no doubt that it is of utmost importance to ensure that an accused is not able to flee the country to escape trial. I have emphasised the importance of this consideration because of the facts and circumstances of the case and at a appropriate stage if occasion again arises such a. consideration will have to be kept in mind before granting permission to the respondent to go abroad. The respondent has projected himself to be an extremely wealthy person having world-wide business interests and assets worth over Rs.two crores in India alone. The present order, I am basing mainly on the first ground urged by the petitioner, i.e. interest of unhindered investigation.

(16) As already noticed all the previous orders on the subject have proceeded on the basis of interest of unhindered investigation. Permission was refused to the respondent to travel abroad for this reason on earlier occasions. I am of the considered opinion that the same reason still operates and interest of investigation in the facts and circumstances of the case is more important than the alleged business interest of the respondent. In the impugned order the learned Special Judge has proceeded mainly on the basis that four months time was given to the investigating agency to complete investigation. Since more than four months' time had expired and the business interests of the respondent abroad are suffering he should be allowed to go abroad. I do not think that in mentioning four months' time, the question of time was foreclosed and no further time could be granted.

(17) For the aforesaid reasons I am of the view that in the interest of unhindered investigation the respondent should not be permitted to travel abroad at this stage. The application of the respondent in this behalf is, therefore, at this stage dismissed. The petitioner is, however, directed to make best efforts to complete the investigations with utmost urgency.

(18) The petition is disposed of.