HIGH COURT OF JHARKHAND Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS Criminal Writ Petition has been preferred by the petitioner for quashing of the order dated 24.2.2012 ( Annexure -6) passed by the Special Judge, CBI, Ranchi, in connection with RC case No. 20(A)/2009R whereby and whereunder the petitioner has been remanded to judicial custody on the ground of non compliance of section 41(B) of the Code of Criminal Procedure and section 80 read with section 76 of the Cr. P.C. The legality of the order has also been challenged on the ground of violation of Article 22(1) and 22(2) of the Constitution of India. It is further prayed that the petitioner may be directed to be released forthwith from custody and an exemplary compensation be granted for his illegal detention by the CBI.

(2.) RESPONDENT CBI has appeared and filed counter affidavit stating inter alia that the petitioner is in Judicial custody since 24.2.2012 and he is under lawful detention and therefore instant writ petition is not maintainable. It is also contended that the petitioner was wanted in connection with RC case No. 20(A)/2009 in which he has been charge sheeted but he did not appear even after issuance of warrant of arrest and proclamation.

(3.) (800M) and 5(150M) of Chaibasa Bye - Pass Road. The work was allotted to respective contractors, but it was found that the work done was not satisfactory and the money allotted against said contract work was defalcated causing loss to the Government in connivance with the officers of the concerned department and the contractors. As a result, FIR was lodged on 22.10.2009 vide RC case No. 20(A)/2009R under sections 120B, 420,467, 468, 471 IPC and section 12(2) read with section 13(l)(d) of the Prevention of Corruption Act, 1988 against the then Executive Engineer, contractor M/s Navnirman Builders & others. Pursuant to the said case, the petitioner was summoned by the investigating officer of the CBI and he was also suspended by the Road Construction Department vide Letter No. 6576 dated 4.11.2010 and a departmental enquiry was set up by letter No. 6591 dated 8.11.2010. On the same set of charges and evidence of witnesses, charge sheet No. 12 dated 3.12.2010 under section 120B of the Indian Penal Code and section 12(2) read with section 13(l)(d) of the Prevention of Corruption Act, 1988 was filed by the CBI against the petitioner and others. Consequently, cognizance was taken on 4.12.2010 and processes to compel appearance of the accused persons were issued. It is necessary to mention here that the petitioner applied for grant of anticipatory bail vide ABA No. 904 of 2011 which was dismissed as withdrawn on 19.11.2011. The petitioner had also preferred Cr.M.P. No. 532 of 2011 for quashing of the entire criminal prosecution launched against him vide aforesaid RC case No. 20(A)/2009R, but it was dismissed on 28.2.2012 on which date, he was already in judicial custody. Since the petitioner was evading his appearance and concealing himself, he was declared proclaimed offender and accordingly, proclamation was issued by the concerned court giving present and permanent address of the petitioner. In view of the warrant of arrest and the proclamation issued, the petitioner was arrested on 22.2.2012 from his native village within Ladania P.S. District Madhubani from where he was brought to PATNA CBI office and detained during night in the CBI lock -up. On the next day he was produced before medical officer for his medical examination and then brought to Ranchi on 24.2.2012 and kept in CBI lock -up at Ranchi between 6.00 a.m. to 12 noon and then forwarded to the court of the Special Judge, CBI, Ranchi from whose court, warrant of arrest and proclamation were issued against the petitioner in connection with RC case No. 20(A)/ 2009R. 4. It is contended on behalf of the petitioner that the CBI has violated the provisions contained under Article 21 read with Article 22(2) Of the Constitution. Liberty of the petitioner was curtailed and he was illegally detained by the CBI within the districts of Madhubani, Patna and Ranchi. After his arrest, no arrest memo was prepared as required under section 41(B) of the Code of Criminal Procedure and he was not produced before the nearest Magistrate, as envisaged under section 57 of the Code of Criminal Procedure. No transit remand as required under section 80 read with section 76 Cr.P.C. was taken by the arresting officer. The petitioner was not produced, after his arrest, before the Magistrate for seeking transit remand as per the provisions contained in section 76 Cr.P.C. The detention of the petitioner by the CBI was in utter violation of Article 22(2) and therefore the learned Special Judge, CBI should not have remanded the petitioner to judicial custody. Thus the order dated 24.2.2012 is illegal ab initio and is liable to the quashed and the petitioner be directed to be released forthwith and exemplary compensation be awarded.