K M PRASAD Vs. STATE OF BIHAR

JUDGEMENT

(1.) IN this application filed under Sec. 482 of the Code of Criminal Procedure, the petitioner has prayed for quashing of the order dated 26 -11 -1996 passed by Special Judge, C.B.I. Patna where by and whereunder the petitioner has been remanded into judicial custody under the provision of Sec. 167 of the Code in Special Case No. 22 of 1996 and for release of the petitioner from custody in the aforesaid case. The petitioner also seeks a declaration that the modus operand adopted by the Central Bureau of Investigation of arresting and seeking remand of the petitioner in only one case out of several special cases, in which he figures as an accused at a time, relating to Animal Husbandry Scam and only upon near completion of the statutory period of 90. days of custody in that case arresting afresh the petitioner and seeking his remand under Section 167 of the Code in the second case and again repeating the process near completion of 90 days of confinement is an abuse and misuse of the power conferred by Sec. 167 of the Code and is also violative of the guaranteed right of the petitioner, under Article 21 of the Constitution of India.

(2.) THE petitioner is accused in a few cases out of several cases registered by the Central Bureau of Investigation in the State of Bihar in connection with alleged large scale illegal withdrawal of huge amount from various Treasuries of the Government of Bihar in relation to supply of fodder, medicine, etc. to the Department of Animal Husbandry which is commonly known as Animal Husbandry Scam. It appears that in the month of February, 1996, various cases were filed by the state Police spread over several districts of the State relating to the aforesaid Animal Husbandry Scam including the cases which later on were registered afresh as a Special Case Nos. 49 of 1996, 33 of 1996 and 22 of 1996 in the Court of Special Judge, C.BJ. Patna. The investigation in 46 old cases were taken up by the Officer of the various Police Stations concerned. While investigation in various cases relating to the said scam were going on writ application by way of Public Interest Litigation was filed in this Court and a Division Bench of this Court directed the C.B.I, to take up investigation relating to fraudulent drawals in Animal Husbandry Department, Government of Bihar during the period 1977 -78 to 1995 -96 and lodged case where drawls are found to be fraudulent in character and to conclude investigation within a specified period. this Court by the said order suspended investigation by the State Police in cases already instituted by it. It further appears from the record that against the aforesaid order the State of Bihar preferred appeal before the Supreme Court under Article 136 of the Constitution and the said appeal Surendra Prasad Sharma Alias Surendra Sharma Versus State Of Bihar was dismissed by the Supreme Court. However, the Apex Court modified the order of this Court to the effect that the investigation by the State Police in cases already instituted shall remain suspended and directed the C.B.I, to take over the investigation of the cases including the F.I.R., arrests and attachments already made there in and deal with them appropriately. Thus, according to direction of the Apex Court the C.B.I, took over the investigation of all the 40 odd cases instituted till the date of passing of the order and those cases were afresh registered as R.C. Cases and were registered in Special Judge, C.B.I., Patna and were assigned various Special Case numbers, According to petitioner, all the three special cases in which the petitioner has been arrested one after another were registered as Special Case Nos. 49 of 1996, 33 of 1996 and 22 of 1996.

(3.) MR . D.D. Thakur, learned senior Counsel appearing on behalf of the petitioner made a very exhaustive argument with regard to object and scope of Sec. 167 of the Code of Criminal Procedure (hereinafter referred to as "the Code"). The learned Counsel firstly submitted that the modus operandi adopted by the C.B.I, in not seeking remand of the petitioner in all the cases at a time in which the figures as an accused and adopting a procedure of arresting the petitioner in one after another case only upon near expiry of the maximum statutory period of detention permissible under Sec. 167 of the Code amount to gross misuse and abuse of the process of the Court and is violative of Articles 14, 21 and 22 of the Constitution of India. The learned Counsel further submitted that the requisition dated 13 -1 -1996 submitted by the C.B.I, is primarily and predominantly for ensuring indefinite incarceration of the petitioner and not for the purpose of which Sec. 167 of the Code has been enacted and, therefore, the action of C.B.I, is arbitrary and ultra vires the provisions and mandates of provisions of Sec. 167 of the Code. The learned Counsel put strong reliance upon the decision of the Supreme Court in C.B.I. Special Investigation Cell -I, New Delhi V/s. Anupam J. Kulkarni - - and developed his argument by referring the series of facts and various documents. According to the learned Counsel, even as per the investigating agency, the several cases of transactions commonly coined as Animal Husbandry Scam are different transactions executed and effected pursuant to a ' single larger conspiracy allegedly entered into between various officers, suppliers and Ors. to fraudulently misappropriate the public money then the repeated/successive remand of the petitioner is in sheer contravention of spirit of Sec. 167 of Code and against the mandate of Articles 14 and 21 of the Constitution of India. Consequently the impugned orders dated 26th November, 1996 and 9th December, 1996 are illegal and the continued detention of the petitioner in custody is unauthorised in law. The learned Counsel has drawn my attention to three First Information Reports Lodged by there respondent State on two different dates i.e., two F.I.Rs were lodged on 4 -2 - 1996. and one F.I.R. was lodged on 20 -2 -1996. According to the learned Counsel, when the petitioner had surrendered before the C.B.I, on 14th June, 1996, it was not permissible in law for the C.B.I, to choose to arrest the petitioner in only one case at a time so that the petitioner may be detained in custody by adopting the illegal method of seeking remand in other cases one by one just prior to expiration of maximum period of custody in the earlier case. Mr. Thakur learned Senior Counsel further submitted that even as per C.B.I, own case all these defalcations, misappropriations and illegal withdrawals of money committed pursuant Surendra Prasad Sharma Alias Surendra Sharma Versus State Of Bihar to a single conspiracy by all the Officers, including the petitioner in connivance with the suppliers, transporters and other agencies. According to the learned Counsel, from the hierarchy of the officers in the Animal Husbandry Department, it will appear that the Department of having one Directorate headed by Director under whom there are Regional Directorate. In the Regional Directorate, there are two wings, namely, the Farms and the Districts. The Farm consists of poultry farm, diary farm and piggery farm. All the three farms are under the control of one General Manager who is the drawing and disbursing officer in the District. Whereas each district is headed by District Animal Husbandry Officer who is the Drawing and Disbursing Officer upto a particular amount. According to the learned Counsel, in the said Directorate of Animal Husbandry Department, the Regional Director, the Regional Joint Director, the District Animal Husbandry Officer and General Manager of the farm are the Drawing and Disbursing Officers. All of them are principal accused since they are alleged to have drawn the money or approved the payment or issued bank drafts. If that is the position, then, if can not be said that the illegal with drawal of money in different districts for which different cases have been instituted, was not the result of a single conspiracy. In that view of the matter, according to the learned Counsel, the successive remand of the petitioner in the cases one after another is unwarranted in law and is mala fide. In this connection, the learned Counsel relied upon a catena of decision, viz., State of Andhra Pradesh V/s. Cheemalapati Ganeswara (1964) 3 SCR 297; Srichand K. Khetwami V/s. State of Maharashtra - - ; Mohd. Husain Umar Kochra Etc. V/s. K. S. Dalip Singh ji and Anr. Etc. - - and Jethsur Surangbhai V/s. State of Gujarat - - . The learned Counsel, there fore, submitted that from the allegations made in the FIR in all the three cases, so far the petitioner is concerned, there is no question of excluding the petitioner from all conspiracy. Referring to the various provisions of the Code, the learned Counsel lastly submitted that in view of the nature of allegations made in the F.I.R. and the modus operandi adopted by C.B.I, in invoking the provisions of Sec. 167 of the Code, the principle laid down by the Supreme Court in Kulkarnt 'scase (supra) fully applies and, therefore, the impugned order of detention of the petitioner is illegal, arbitrary and without jurisdiction.