High Court
Case Details
WP(C) 3908/2013 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA JUDGEMENT AND ORDER (ORAL) Heard Mr. A. Goyal, learned counsel for the petitioners. I have also hea rd Mrs. H.M. Phukan, learned State Counsel. On request, Mr. Z. Kammar, learned P P, Assam has assisted this Court by advancing his arguments. 2.
Legal Reasoning
By means of this writ petition, the four petitioners have challenged the order dated 10/06/2013 passed by the learned Special Judicial Magistrate, Guwah ati in connection with Bhangagarh PS case No. 109/2013. The order reads as follo ws :-
Legal Reasoning
(cid:28)10.06.2013 : C.R. put up before the Court. Seen the order passed by the Ld. Add l. Chief Metropolitan Magistrate, 47th Court, Esplanade, Mumbai and P/W issued a gainst the accused persons 1. Sri Dinesh Khatian alias Dinesh Mulla Krushnappa K hatiyan, 2. Mr. Aleksei Muratov alias Aleksei Valentin Muratov, 3. Dinesh Roghko v alias Denish Gene Rozokhov, 4. Rensih Balan alias Renish Millan Kunnumal Balan , 5. Sri Nabajit Das alias Nabajit Narayan Das, 6. Anderi Kilin alias Andrey Val entin Kilin for production before the Ld. Issuing Court in connection with EOW C .B. CID Mumbai C.R. No. 47/13 U/S 406/120(B) IPC R/W 4, 5, 6 PCMCB Act/1978 and R/W 3,4 M.P.I.D. Act. Other hand I/O C.R. Kakade, Police Inspector, Economic Off ence Wingh, Unit-XI, Crime Branch, Mumbai has appeared before the Court with a p rayer for allowing the above noted accused persons to receive from Central Jail, Guwahati for onward production before Ld. Addl. Chief Metropolitan Magistrate, 47th Court, Esplanade, Mumbai. Prayer is allowed. Inform all concerned. (cid:29) The petitioners are citizens of Russia. The petitioners No. 1, 2 and 3 a 3. re named accused in Bhangagarh PS case No. 109/2013 registered under Section 120 (B)/400/420 IPC read with Section 4 and 5 of Price Chit and Money Regulation Sch eme Banning Act, 1978. Petitioner No.4 has come from Russia to provide necessary help to the petitioners No. 1 to 3 to defend their case. 4. According to the accused petitioners in view of pendency of the aforesai d case, the learned Special Judicial Magistrate, Kamrup, Guwahati, could not hav e passed the impugned order dated 10/06/20113 permitting the Police Inspector, E conomic Offence Wing, Unit-XI, Crime Branch, Mumbai to take the accused petition ers from the Central Jail, Guwahati for onward production before the learned Add itional Chief Metropolitan Magistrate, 47th Court, Esplanade, Mumbai. It is the case of the petitioners that since in both the cases, same nature of offence has been alleged against the accused petitioners, there cannot be two parallel proc eedings and that the proceeding in Guwahati should also take care of the proceed ing in Mumbai. It is the further case of the accused petitioners that the said o rder dated 10/06/2013 could not have been passed by the learned Court below with out providing an opportunity of being heard to the accused petitioners. Alleging violation of Right to Life and Liberty guaranteed by the Constitution of India, Mr. A. Goyal, learned counsel for the petitioners have placed reliance on certa (2010) 1 SCC 01 (Rasiklal Dalpatram Thakkar Vs. State of Gujarat and oth in decisions, which are as follows :- (cid:28)1. (2001) 8 SCC 630 (Sukhjinder Singh Vs. State (NCT of Delhi). 2. ers). 3. kh etc. etc.) 4. her). 5. (1980) 3 SCC 488 (Sunil Batra (II) Vs. Delhi Administration). 2013 AIR(EC) 168 (State of Maharashtra & Ors. etc. Vs. Saeed Sohail Shei (2008) 8 SCC 300 (Naresh Kavarchand Khatri Vs. State of Gujarat and anot Mr. Z. Kamar, learned PP, Assam has submitted that the writ petition is 5. misconceived. He submits that the petitioners allegedly having committed a crime in the State of Maharashtra and another crime in the State of Assam, it cannot be said to be a case of same transaction debarring parallel proceedings. He also referred to the Chapter - XIII of the Cr.P.C. so as to emphasis that every offe nce shall ordinarily be enquired into and tried by a Court within whose local ju risdiction it was committed. 6. I have considered the submissions made by the learned counsel for the pa rties and have also perused the entire materials on record. My findings and conc lusions are as follows.
Decision
7. As submitted by the learned counsel for the accused petitioners, petitio ners No. 2 and 3 are in judicial custody and presently in Mumbai. So far as the petitioner No.1 is concerned, he had filed a writ petition earlier being WP(C) N o. 3317/2013, disposed of 14/06/2013. In the writ petition, the said accused pet itioner had prayed for his shifting to the private hospital from MMC hospital, G uwahati on the ground of lack of facility and for better treatment. By the time the writ petition was filed and disposed of on 14/06/2013, the impugned order wa s already passed by the learned Court below on 10/06/2013 but the only prayer in the writ petition was for shifting of the accused petitioner No.1 to a private hospital for better treatment. 8. As recorded in the order dated 14/06/2013, by which the writ petition wa s disposed of, the accused petitioners were arrested on 28/05/2013 and on being produced before the learned CJM, Kamrup on 29/05/2013, they were remanded to jud icial custody for 14 days. Meanwhile, the Mumbai police took custody of all the accused persons and when they were being shifted to Mumbai, the accused petition er No.1 fell ill in the Guwahati Railway Station and consequently was hospitaliz ed in MMC Hospital from where he was permitted to be shifted to another hospital . So the accused petitioner was about to be taken to Mumbai but because ha had f allen ill, he had to be hospitalized. 9. While filing the earlier writ petition being WP(C) No. 3317/2013, no gri evance was raised against the impugned order dated 10/06/2013 and the only praye r was to allow the accused petitioner No.1 to be shifted to a hospital with bett er facilities, which was allowed, stipulating that there should not be any compr omise on the security aspect of the matter. It was also observed that by permitt ing the accused petitioner No.1 to be shifted to another hospital, there was no direction to release him from judicial custody. 10. Mr. A. Goyal, learned counsel for the petitioners submits that that pres ently the accused petitioner No.1 is in a private hospital, namely, Pratiksha Ho spital. 11. As per the materials available on records, the aforesaid Bhagagarh PS Ca se No. 109/2013 has been registered on the basis of the FIR lodged by one Shri Nunal Kishore Singh alleging cheating the people by alluring them to invest on p romise of high return. Similarly, Azadmaidan PS of Mumbai has also registered a case bearing No. 104/2013 against the accused petitioners under Section 406, 420 , 120(B). The case has been registered on the basis of the report submitted by t he Sub-Inspector of the Police Station. It has been alleged that the people are being allured to invest with the promise of return of the amount with 30% intere st after one month. As per the statement no permission has been obtained from th e Reserve Bank of India to carry out such activity or any Government Department. It has been alleged that the scheme is illegal and action is required to be tak en against the accused petitioners. 12. The whole basis of the argument of Mr. A. Goyal, learned counsel for the petitioners is that since the offence allegedly committed by the accused petiti oners is one and the same, there cannot be two parallel proceeding, one in Guwah ati and another in Mumbai. According to him, the proceeding in Guwahati having b een initiated at earlier point of time, if need be, the proceeding initiated in Mumbai be transferred to Guwahati. 13. It is not a case of involvement of same transaction or a chain of events linking one with the other. If the accused petitioners have committed the alleg ed offence in Mumbai and another offence in Guwahati, in the garb of same offenc e being committed, the accused petitioners cannot take the shelter of confining the proceeding in Guwahati irrespective of their alleged involvement in the crim e committed in Mumbai. 14. Above being the position, the decisions on which the learned counsel for the petitioners has placed reliance is of no help to their case. In Sukhjinder Sing (Supra) referring to the provisions of Section 166 to 187 of the Cr.P.C., i t was held that criminal proceeding relating to the same offence, parallel proce eding cannot be continued in more than one criminal Court. In the instant case, it is not a case of the proceedings parallel in Guwahati and Mumbai for the same offence. They are independent of each other. 15. In rasiklal Dalpatram Thakkar (Supra) it was held that the Police office r is entitled to transfer investigation to another Police Station having jurisdi ction. Same is not the position in the instant case. In Saeed Sohail Sheikh (Sup ra), it was a case of transfer of the accused from one prison to another. It was in such circumstances, it was held that such transfer cannot be affected by a M inisterial act but the same requires judicial order. In Naresh Kavarchand Khatri (Supra), the Apex Court found fault for transfer of the investigation from one Police Station to another without assigning any reason. In the said case it was held that whether an Officer In-charge of a PS has the requisite jurisdiction to make investigation or not will depend upon a large number of factors including those contained in Section 177, 178 and 181 Cr.P.C. In Sunil Batra (II) (Supra), the Apex Court emphasized on the rights of the prisoners and that a prisoner sh all not be deprived of its guaranteed freedom save by methods of (cid:28)right, just an d fair (cid:29). Instant case is not a case of deprivation of any such right of the accu sed petitioners. 16. In the instant case, the accused petitioners were arrested in connection with the aforesaid Bhangagarh PS case No. 109/2013 and in the mean time their p resence has been sought for in connection with another case in Mumbai. Requisiti on for the same having been placed, the learned Special Judicial Magistrate havi ng passed the impugned order permitting the Mumbai Police to take the accused pe titioners to Mumbai, I do not find any infirmity in the said order. 17. At this stage, Mr. Z. Kamar, learned PP, Assam, referring to the decisio n reported in 2012 (3) GLT 657 (Tazimuddin Ahmed (MD) Vs. Union of India & Ors) submits that there is nothing wrong in the impugned order passed by the learned Special Judicial Magistrate. 18. For all the aforesaid reasons I do not find any merit in the writ petiti on and accordingly it is dismissed, leaving the parties to bear their own costs.