Arun Kumar Mishra v. Central Bureau of Investigation Through SPE Dehradun

an FIR for various offences under Indian Penal Code and Prevention of Corruption Act against these accused persons and the genesis of the crime was that Arun Kumar Mishra collected amassive wealth misusing and abusing his official position and a large chunk of that wealth was deposited by way of opening five fictitious accounts in the Punjab National Bank, Jwalapur Branch, Haridwar. These account numbers were detected even before lodging of the FIR. Investigation was conducted and the allegations were found true. So, the CBI submitted the chargesheet accordingly. In the course of investigation, it was also reliably found that many more accounts in different branches at difference cities were also opened and in operation by Mr. Arun Kumar Mishra likewise. Since the investigation has been completed regarding those five accounts wherefor the FIR was lodged, so the chargesheet was submitted and the learned trial judge passed the impugned order of levelling the charges against the accused persons.

#4. The aforesaid impugned order dated 8.5.2012 has been assailed on the strength of following five authorities: A. T.V. Sarma v. Smt. Turgakamala Devi & Others, 1976 CRI. L.J. 1247; B. S.M. Purtado and etc. etc. v. Dy. S.P., C.B.I., Cochin and etc. etc., 1996 CRI. L.J. 3042; C. Tunde Gbaja v. Central Bureau of Investigation, 2007 (2) JCC 1306, and D. Bhartendu Pratap Singh v. State of U.P. & Another, Criminal Misc. Case No. 4621/2010, decided on

11.4.2011 by Lucknow Bench of Hon(cid:146)ble Allahabad High Court. 3

#5. This Court has rendered detailed hearing to learned Sr. Advocate as well as to learned Advocate for the CBI, and is of the considered view that all aforementioned precedents are not applicable in the present controversy. Main contention of learned Sr. Counsel for the accused is that where the incomplete chargesheet has been submitted by the investigating agency pending rest of the investigation, then prosecution cannot be permitted to proceed. In other words, the chargesheet cannot be filed in piecemeal.

#6. Contention put forth by learned Counsel may be laudable and sounds well at its own place, but the position is otherwise in the present case and the same will be clarified after sketching the proposition propounded in the aforementioned precedents.

#7. In the first authority of T.V. Sarma case (at point A), only a preliminary chargesheet was submitted by the investigating agency for a particular offence wherefor the investigation was not yet complete and this was done so only to deter the accused to take benefit of Section 167(2), proviso (a) and Section 309 CrPC, which provide that if the complete chargesaheet is not submitted within 60 days or 90 days, as the case may be, then the accused is entitled for bail.

#8. In the case in hand, complete chargsheet has been submitted by the CBI for the offences which were allegedly committed the accused persons at one point of time at one place and at one branch of the bank. This is in itself a complete offence or a set of offences allegedly 4 committed at one place. So, it cannot be seen as an incomplete chargesheet pending investigation.

#9. Likewise, in the second precedent in S.M. Purtado case (at point B), the chargesheet was submitted by the Investigation Officer to prosecute the accused only under the Maritime Zones Act after taking sanction order of the same. There the act of the accused was also covered under the Foreigners Act as well as the Indian Penal Code, but the chargesheet was not submitted for the offences under the said Act and Penal Code. In that eventuality, Hon(cid:146)ble Kerala High Court was of the view that such a chargesheet submitted in piecemeal to deter the accused from claiming the benefit of Section 167(2), proviso (a) CrPC was not permissible. But this is not the situation here.

#10. In the next authority of Tunde Gbaja case (at point no. C), similar was the situation as in the above two discussed cases.

#11. In the last verdict of Bhartendu Pratap Singh case (at point no. D), the chargesheet was submitted by the Investigation Officer only on the basis of statements of some of the witnesses recorded by him, but the documents used in commission of forgery, could not be taken in possession by the Investigation Officer due to so many hindrances and the chargesheet was submitted. Although the Investigation Officer was making efforts to get access to those documents even by way of filing writ petition before the High Court, yet the chargesheet was submitted. In that situation, the Lucknow Bench of Hon(cid:146)ble Allahabad High Court was of the view that the cognizance taken by the learned Magistrate on the basis of such a chargesheet was 5 not proper because that was submitted in quite haste without having been supported by the papers whereupon the alleged forgery was committed. The Investigation Officer was obliged to complete the proceedings for collection of evidence which was within his knowledge and then only to file the chargesheet.

#12. This is not the situation in the instant case. Here, the complete investigation has been done regarding the forgery which have been committed at a particular point of time by opening five fictitious bank accounts in a single branch of Punjab National Bank situated Jwalapur, Haridwar with the active connivance of Managers posted at that branch at the relevant time. So, the investigation is quite complete regarding a particular set of offences allegedly committed at a single branch of the bank.

#13. So far as the reliable information regarding more than 66 fictitious accounts are concerned, the investigation is in progress. If the analogy put forth by learned Counsel is accepted for a moment, then the trial of this accused in all probabilities may not likely to commence for decades for the reason that if the CBI unveils 5, 10, 15 or (cid:133)..65 accounts, then investigation will always be at the brink of completion but never to the hilt and thus may remain left regarding any one single account. In that eventuality, the plea shall be raised that until and unless that one account is also traced, the charge cannot be levelled against the accused persons. This will frustrate the entire purpose of the criminal prosecution and the object of the Code of Criminal Procedure. No provision of the Code can be put into construction in such a manner as to defy the 6 object and provisions of any enactment. In this regard, Section 218, 219 and 220 of the Code are worthy of reading. Suppose all the remaining 66 or even more fictitious accounts are traced, that may take even period of a decade or more, then certainly those offences are quite distinct albeit of the same nature, but committed at different places and different times. So, they all cannot be covered by a single charge levelled by the CBI Court. If the similar offence is committed in the territory of other provinces by the accused Arun Kumar Mishra along with the Branch Managers of those banks, then he will face the trial in that province, and not at CBI Court, Dehradun. So, on this pretext, the proceedings of the instant trial cannot be put into stunt.

#14. It is a well-known principle of criminal jurisprudence that the court takes cognizance of the crime and not the offender. So, the crime committed at a particular place and time will be tried separately. Trial may be the same if a set of crimes is so interconnected together as it is not possible to segregate them irrespective of their commission at different times and different places. In such a case all the offences can be tried together in one court, but if the crimes are different albeit of the same nature allegedly committed at different times and different places, then procedure demands that all the crimes shall be tried separately on the basis of separate chargesheets.

#15. So, in view of what has been discussed above, this Court is in full agreement with the view taken by learned trial court vide its order dated 8.5.2012 and has rightly rejected the applications 172b, 178b and 179b moved by the accused. This Court hopes that the charges 7 must have been levelled against the accused persons by now and the trial would have commenced and the endeavor would be made by trial court to expedite such a case to its conclusive end.

#16. The Court is amazed that a prayer in the petition has also been advanced to quash the order dated

30.4.2012. It can remarkably be noticed that with the same prayer a petition no. 443/2012 was filed under Section 482 CrPC on 2.5.2012, but it was dismissed as withdrawn at the request made on behalf of the accused applicant Arun Kumar Mishra just on the next day i.e. on 3.5.2012. Having a look upon the said order passed by the court below, its substantive effect is to permit the operation of the account numbers 1157020006363 (Federal Bank), 0357002100288857 (PNB) and 03500180000019 (PNB) respectively in the name of M/s Prakash Trackon Private Ltd., M/s Sat Enterprises (India) Private Ltd. and M/s J.M. Textiles Private Ltd.

#17. It is pertinent to mention that CBI had stopped the operation of the aforementioned accounts, but the learned trial court had quashed the directions of the CBI prohibiting the operation of those accounts. CBI was of the view that there was reliable evidence that these are fictitious companies and are being run by the money made available to them by the accused Arun Kumar Mishra. Even so, learned Special Judge, CBI, Dehradun turned down the directions of CBI and allowed the operation of aforementioned accounts. So, instantly, in all probabilities the money in those accounts might have been withdrawn by now. Nevertheless, if the prayer has been advanced in the instant petition by the accused Arun Kumar Mishra 8 and the same has not been opposed by the CBI, then this Court has no hesitation in setting aside the order dated

30.4.2012 .

#18. Consequently, order dated 30.4.2012 permitting the operation of the said accounts is hereby quashed. However, order dated 8.5.2012 is sustained. Petition stands disposed of finally .

17.9.2012 Prabodh (Servesh Kumar Gupta, J.)