Delhi High Court
Directorate General Of Central ... vs Brijesh Kanodia on 22 February, 2011
Author: Shiv Narayan Dhingra
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: February 08, 2010
Date of Order: February 22, 2011
+ Crl. MC No.3537 /2010
% 22.02.2011
Directorate General of Central Excise Intelligence ...Petitioner
Versus
Brijesh Kanodia ...Respondent
Counsels:
Mr. Satish Aggarwala for petitioner.
Mr. Pradeep Jain and Mr. Yogesh Mittal for respondent.
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the judgment? Yes.
2. To be referred to the reporter or not? Yes.
3. Whether judgment should be reported in Digest? Yes.
JUDGMENT
1. This petition under Section 482 Cr.P.C has been preferred by the petitioner for
cancellation of bail of the respondent/accused granted by learned ACMM vide order
dated 18th September 2010 on the ground that the learned ACMM in this case
transgressed all limits of propriety and acted as a part of investigation and then heard the
bail application himself. The other grounds for cancellation of bail are on merits which
this Court is not considering.
2. While respondent was in judicial custody, an application was made by the
petitioner department to make enquiries from the respondent /accused in Central Jail,
Tihar, Delhi under Section 14 of the Central Excise Act so as to complete certain aspects
of the investigation. The permission was sought so that Mr. Anil Chandeliya, Senior
Intelligence Officer may visit Central Jail, Tihar and make enquiries from the respondent.
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The learned ACMM directed that the respondent accused be not interrogated in Central
Jail, Tihar but he be brought to the Court and any enquiry be made before the court on
17th September 2010 at 10 am. He issued production warrants of the accused/
respondent to be brought before the Court on 18th September 2010. Thereafter, the
accused was produced and the learned ACMM kept recording order-sheets about the
conduct of enquiries being done by SIO from the petitioner department on hourly basis.
The first order-sheet of the day make it clear that the accused was produced on 18th
September 2010 and the learned Judge kept on recording hourly order-sheets in
respect of the enquiry. His orders are at 10.30 am, 11.30 am, 12.15 pm, 1.30 pm and
after lunch. The learned ACMM heard arguments on the bail application made by the
accused and granted bail on the same very day. Since it was already 5.35 pm by the
time he passed order, he directed that the order be sent to Jail via special messenger
along with release warrants.
3. As far back as 1945, Privy Council in Emperor v Khwaja Nazir Ahmad AIR 1945
PC 18 had observed, "It was the utmost importance that the judiciary should not interfere
with the police in matters which are within their province and into which the law imposes
upon them the duty of enquiry". The Privy Council further observed, "It would be an
unfortunate result if it should be held possible to interfere with those statutory rights by
an exercise of the inherent jurisdiction of the Court. The functions of the judiciary and the
police are complementary not overlapping and the combination of individual liberty with a
due observance of law and order is only to be obtained by leaving each to exercise its
own function, always, of course, subject to the right of the Court to intervene in an
appropriate cases when moved under Section 491 Cr.P.C.".
4. The inherent powers under Section 482 Cr.P.C have been granted only to the
High Courts and there are no inherent powers available to the courts subordinate to the
High Court. The subordinate courts are supposed to act in accordance with the
Crl.MC 3537/2010 Page 2 Of 5
provisions of Cr.P.C and cannot transgress the limits imposed upon the courts by
Cr.P.C. There is no provision in Cr.P.C that a court can order that an enquiry be made
from the accused in its presence nor the court can order that interrogation of accused by
the investigating agency be done in presence of the court. This is to keep the judicial
functions and executive functions separate. Once the investigation is done in presence
of the court, the court becomes a witness to the investigation and this act of the court
prejudices the court either in favour of accused or in favour of the prosecution. It is for
this reason that the investigation and adjudication are done by two separate wings and
the courts cannot become party to the investigation. In State of Bihar v J.A.C Saldanha
AIR 1980 SC 326 (Full Bench), the Supreme Court observed, there was a clear cut and
well demarcated sphere of activity in the field of crime detection and crime punishment
and investigation of an offence was in the field exclusively reserved for the executive.
The superintendent over which vests a State Government, the role of the courts start
only once the investigation is complete and investigating officer submits report to the
court and requests court to take cognizance of the offence. In Eastern Spinning Mills &
Virendra Kumar Sharda v Rajiv Poddar AIR 1985 SC 1668 (Full Bench), the Supreme
Court observed, "save in exceptional case where non-interference would result in
miscarriage of justice, the Court and the judicial process should not interfere at the stage
of investigation of offences. Investigation must proceed unhampered by Court orders". In
M/s Jayant Vitamins Ltd. v Chaitanyakumar AIR 1992 SC 1930, the Supreme Court
observed, "The investigation into an offence is a statutory function of the police and the
superintendence thereof is vested in the State Government and the Court is not justified
without any compelling and justifiable reason to interfere with the investigation". In
Dukhishyam Benupani, Asst. Director, ED (FERA) v Arun Kumar Bajoria 1998 (1) SCC
52, the Supreme Court observed, "it is not the function of the court to monitor
investigation processes so long as such investigation does not transgress any provision
of law. It must be left to the investigating agency to decide the venue, the timings and the
Crl.MC 3537/2010 Page 3 Of 5
question and the manner of putting such questions to person involved in such offences.
A blanket order fully insulating a person from arrest would make his interrogation a mere
ritual".
5. It is thus apparent that the learned ACMM who possessed no inherent powers to
interfere into the investigation showed keen interest in the investigation in this case and
wanted the accused to be brought to his court and investigation be done in his presence.
6. The keen interest of the ACMM in this case was not an isolated incident. The
learned ACMM in all cases has shown poor understanding of criminal law. This Court
had occasion to consider several other orders passed by learned ACMM and was
compelled to find out about other cases before the learned ACMM and the results were
startling. In all criminal cases decided by learned ACMM, either the accused were
discharged or acquitted on technical grounds more specifically on technical ground of
sanction granted being not a valid sanction or granted without application of mind. It is
not that the relevant law in respect of sanction was not brought to the notice of the court.
The Supreme Court categorically observed that the courts cannot acquit a person on the
ground of sanction not being valid unless there was serious failure of justice and
prejudice has been caused to the accused on the ground of invalid or defective sanction
[State of M.P. v Jiyalal 2009 (15) SCC 72]. The Supreme Court laid down that it is not
necessary for prosecution to examine the person, who was the sanctioning authority, to
prove the sanctioning order. Despite clear ruling of the Supreme Court, the learned
ACMM had been passing orders contrary to the judgment of the Supreme Court and
despite every sanctioning order being in detail giving facts and reasons for granting
sanction, the learned ACMM had been passing orders that the sanction was granted
without application of mind, though law is that the court cannot draw any adverse
conclusion that the sanction for prosecution was not properly granted or was defective
without indicating any basis for such conclusion. Out of 78 cases decided by this ACMM
Crl.MC 3537/2010 Page 4 Of 5
from April, 2010 to October 2010, he discharged/ acquitted accused persons in 73 cases
only on this technical ground. The conviction in remaining five cases was under
compulsion because accused persons pleaded guilty.
7. Without going into the merits of the case and looking into the conduct of learned
ACMM that he transgressed all limits of judicial propriety, the order dated 18th September
2010 passed by learned ACMM granting bail to the respondent is hereby set aside and
the matter is remanded back to the present ACMM for considering the application of the
respondent/ accused afresh on merits without being influenced by the order of earlier
ACMM. The application for bail of the accused/ respondent is already on record and the
reply to the same is also on record of learned ACMM. The accused/ respondent shall
surrender before the learned ACMM on 1st March, 2011 and the learned ACMM shall
hear arguments either on the same day or on the following day and shall dispose of the
bail application of the accused/ respondent on merits.
8. The petition stands disposed of with above order.
February 22, 2011 SHIV NARAYAN DHINGRA, J
rd
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