V. Ganesan S/o Venkatachalam v Inspector of Police, District Crime Branch, Erode

Madras High Court

11 December 2012

Cr. O.P. No. 28440 of 2012 The Order of the Court was as follows : 1. The petitioner, who was arrested on 05.10.2012 by the respondent/police in connection with the case in Crime No. 44 of 2012 for the offences punishable u/s. 120(b) and 420 IPC read with S. 72 and S. 74 of Information Technology Act, seeks bail. 2. The case of the prosecution is that they have received a complaint from Anand Kumar, the defacto complainant, who has complained that one Vivek of Kerala State and Senthil of Coimbatore along with Marimuthu, Selvam, Gopi and Sakthi have represented to him that they are collecting deposit amount from the public of the area and the deposit amount is being invested with the companies namely Fine Future, Best Way, Gud Ways, Fine India etc., functioning at Kerala and the deposited amount is being invested in to online trading, which in turn will fetch prospective returns. It was also represented that if a sum of Rs.1,00,000/- is deposited, the company will return a sum of Rs.8,500/- per month towards bonus and that the deposited amount will be returned along with attractive bonus amount within a short period. It was further represented that one Ganesan (the petitioner herein) and others belonged to the local Villages have also joined the deposit scheme and as soon as the amount is deposited the monthly returns will be sent to the investors online and that amount can be withdrawn based on the individual ID number that would be given to each of the depositors. It is further stated that believing such representation to be true, the defacto complainant joined the deposit scheme through the petitioner herein and one Pazhanisamy. It is further complained that the petitioner also introduced some of his friends about the scheme and through the petitioners, his friends have also deposited amount in the deposit scheme, but he was cheated of his lawful investment and he was not paid any amount. Therefore, the petitioner has given the instant complaint on 04.10.2012, based on which the case in Crime No. 44 of 2012 was registered. 3. The learned counsel for the petitioner mainly contended that the petitioner was arrested on 05.10.2012 and he has been in custody for more than 67 days, but till date, charge sheet has not been filed by the respondent police. It is further contended that the offence complained against the petitioner is u/s. 420 IPC and the first information report has not been altered to any other sections. Therefore, the learned counsel for the petitioner prayed this Court to consider the prolonged incarceration of the petitioner for the past more than two months and to grant him bail. In support of his contention, the learned counsel for the petitioner relied upon the decision of the Honourable Supreme Court reported in Rajeev Chaudhary Vs. State (NCT) of Delhi (2001) 5 Supreme Court Cases 34 2001 Indlaw SC 20136, Natabar Parida and Others Vs.State of Orissa AIR 1975 Supreme Court 14651975 Indlaw SC 405 and Aslam Babalal Desai Vs. State of Maharashtra AIR 1993 Supreme Court 1 1992 Indlaw SC 218. Relying on the aforesaid decisions, the learned counsel for the petitioner seeks bail on the ground that the statutory period is over and the petitioner's incarceration pending trial is no longer required. 4. The learned Government Advocate (Crl.Side) would mainly contend that the investigation is now in the stage of transferring the case to some other investigating agency and the process is going on. As on date, the charges leveled against the petitioner is only u/s. 420 IPC inasmuch as the petitioner has collected huge money from the public by making false promise and deceived them. In any event, to safe guard the interest of the depositors, who have lost their hard earned money, the presence of the petitioner should be ensured. 5. The learned counsel for the Intervener only submits that the petitioner has collected huge amount from various depositors. 6. Heard the counsel on either side and perused the documents available on record. 7. A perusal of the documents made available would reveal that the petitioner has collected huge amount and alleged to made fanciful promises and failed to refunded the amount. Therrefore, on the basis of the complaint given by the defacto complainant, who is also one of the depositors, the case came to be registered. As on date, the case was registered against the accused persons u/ss. 120(b) and 420 of IPC and Ss. 72 and 74 of Information Technology Act. If the guilt of the accused is proved for all these offences, they will be awarded punishment of less than 10 years, as per the Code and therefore the custody period is only 60 days. In fact, the learned Government Advocate (Crl.Side) would state that they are in the process of transferring the investigation, but as on date, even after getting three adjournments, no documentary evidence has been produced till date to show that any steps are being taken for transferring the case to some other independent agency or the provisions under which the case was originally transferred is sought to be altered. In this context, it is necessary to refer to the decision of the Honourable Supreme Court reported in Aslam Babalal Desai Vs. State of Maharashtra AIR 1993 Supreme Court 1 1992 Indlaw SC 218 and the relevant paragraphs are extracted here under:- "...11. On a conjoint reading of Ss. 57 and 167 of the Code it is clear that the legislative object was to ensure speedy investigation after a person has been taken in custody. It expects that the investigation should be completed within 24 hours and if this is not possible within 15 days and failing that within the time stipulated in cl. (a) of the proviso to S. 167(2) of the Code. The law expects that the investigation must be completed with despatch and the role of the Magistrate is, to over-see the course of investigation and to prevent abuse of the law by the investigating agency. As stated earlier, the legislative history shows that before the introduction of the proviso to S. 167(2) the maximum time allowed to the investigating agency was 15 days under Sub-S.(2) of S. 167 failing which the accused could be enlarged on bail. From experience this was found to be insufficient particularly in complex cases and hence the proviso was added to enable the Magistrate to detain the accused in custody for a period exceeding 15 days but not exceeding the outer limit fixed under the proviso (a) to that sub-section. We may here mention that the period prescribed by the proviso has been enlarged by the State amendments and wherever there is such enlargement, the proviso will have to be read accordingly. The purpose and object of providing for the release of the accused under sub-s. (2) of S. 167 on the failure of the investigating agency completing the investigation within the extended time allowed by the proviso was to instill a sense of urgency in the investigating agency to complete the investigation promptly and within the statutory time-frame. The deeming fiction of correlating the release on bail under Sub-s. (2) of S.167 with Chapter XXXIII, i.e, Ss. 437 and 439 of the code, was to treat the order as one passed under the latter provisions. Once the order of release is by fiction of law an order passed u/s. 437(1) or (2) or 439 (1) it follows as a natural consequence that the said order can be cancelled under subs. (5) of S. 437 or sub-s. (2) of S. 439 on considerations relevant for cancellation of an order thereunder. As stated in Raghubir singh's case (AIR 1987 SC 149 1986 INDLAW SC 617) the grounds for cancellation u/ss. 437(5) and 439(2) are identical, namely, bail granted u/s. 437(1) or (2) or 439(1) can be cancelled where (i) the accused misuses his liberty by indulging in similar criminal activity, (ii) interferes with the course of investigation (iii) attempts to tamper with evidence or witnesses, (iv) threatens witnesses or indulges in similar activities which would hamper smooth investigation. (v) there is likelihood of his fleeing to another country, (vi) attempts to make himself scarce by going underground or becoming unavailable to the investigating agency, (vii) attempts to place himself beyond the reach of his surety, etc., These grounds are illustrative and not exhaustive. It must also be remembered that rejection of bail stands on one footing but cancellation of bail is a harsh order because it interferes with the liberty of the individual and hence it must not be lightly resorted to. 14.We sum up as under: The provisions of the Code, in particular Ss.57 and 167, manifest the legislative anxiety that once a person's liberty has been interfered with by the police arresting him without a Court order or a warrant, the investigation must be carried out with utmost urgency and completed within the maximum period allowed by the proviso (a) to S. 167(2) of the code. It must be realised that the said proviso was introduced in the code by way of enlargement of time for which the arrested accused could be kept in custody. Therefore, the prosecuting agency must realise that if it fails to show a sense of urgency in the investigation of the case and omits or defaults to file a charge-sheet within the time prescribed, the accused would be entitled to be released on bail and the order passed to that effect under S. 167(2) would be an order u/s. 437(1) or (2) or 439(1) of the Code." 8. In the case of Rajeev Chaudhary Vs. State (NCT) of Delhi reported in (2001) 5 SCC 34 2001 Indlaw SC 20136, it has been held that, "4. S. 167 is a provision which authorises the Magistrate permitting detention of an accused in custody and prescribing the maximum period for which such detention could be ordered pending investigation. We are concerned with the interpretation of proviso (a) of S. 167(2) which reads thus:- "167. Procedure when investigation cannot be completed in twenty-four hours-(1) (2) Provided that - (a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding,- (i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years; (ii) ** (emphasis added) 5. Further, S. 386 IPC provides as under: "386. Extortion by putting a person in fear of death or grievous hurt - Whoever commits extortion by putting any person in fear of death or of grievous hurt to that person or to any order, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine" (emphasis added) 6. From the relevant part of the aforesaid sections, it is apparent that pending investigation relating to an offence punishable with imprisonment for a term "not less than 10 years", the Magistrate is empowered to authorise the detention of the accused in custody for not more than 90 days. For rest of the offences, the period prescribed is 60 days. Hence in cases where offence is punishable with imprisonment for 10 years or more, the accused could be detained up to a period of 90 days. In this context, the expression "not less than" would mean imprisonment should be 10 years or more and would cover only those offences for which punishment could be imprisonment for a clear period of 10 years or more. Under S. 386 punishment provided is imprisonment of either description for a term which may extend to 10 years and also fine. That means, imprisonment can be for a clear period of 10 years or less. Hence, it could not be said that minimum sentence would be 10 years or more. Further, in context also if we consider cl.(i) of proviso (a) to S. 167(2), it would be applicable in case where investigation relates to an offence punishable (1) with death; (2) imprisonment for life; and (3) imprisonment for a term of not less than ten years. It would not cover the offence for which punishment could be imprisonment for less than 10 years. Under S. 386 IPC, imprisonment can vary from minimum to maximum of 10 years and it cannot be said that imprisonment prescribed is not less than 10 years". 9. Taking into consideration of the fact that the petitioner is seeking bail only on the ground that he is under incarceration beyond the statutory period prescribed under S. 167(2), this Court is inclined to release the petitioner on bail on the following stringent conditions:- (i) The petitioner is ordered to be released on bail on his executing a bond for a sum of Rs.2,00,000/- (Rupees two lakhs only) with two sureties, each for a like sum to the satisfaction of learned Judicial Magistrate No.3, Erode. (ii) The petitioner is directed to surrender his passport, if any, to the magistrate concerned. The petitioner shall not apply for passport without the permission of the Court (iii) The petitioner shall file an undertaking affidavit before the court below that he will disclose all the properties available with him and co-operate with the police for the proper conduct of the investigation. (iv) The petitioner shall report before the respondent police daily twice at 10.00 a.m and 5.30 p.m. for a period of four weeks till the case is transferred to new agency and thereafter shall appear before the transferred agency daily twice at 10.00 a.m and 5.30 p.m. until further orders. Petition disposed of