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B.A. No. 9649 of 2011 - Dr. Harish Babu Maddineni Vs. State of Kerala, 2012 (1) KLT 235 : 2012 (1) KLJ 189 : 2012 (1) KHC 62 : 2011 (1) KLD 1

posted Jan 28, 2012, 8:21 PM by Kerala Law Reporter   [ updated Jul 2, 2012, 8:19 AM by Law Kerala ]
HIGH COURT OF KERALA


Hon'ble Mr. Justice K.T. Sankaran
B.A. No. 9649 of 2011
Dated this the 5th Day of January, 2012
For Petitioner: -
  • Rajit 
For Respondent: - 
  • K.I. Abdul Rasheed 
Head Note:-
Code of Criminal Procedure, 1973 - Section 167 (2) Proviso - For the purpose of computation of the period for default bail time starts from the date of remand not from the date mentioned by the investigating officer as the date of formal arrest.
O R D E R

1. The petitioner in these Bail Applications is Dr.Harish Babu Maddineni. He is an accused in hundreds of cases of similar nature.

2. Bail Applications filed by the petitioner were dismissed by a detailed order dated 31st October, 2011 (reported in 2011 (4) KLT 637). For the sake of convenience, the facts of the case as narrated in 2011 (4) KLT 636 are extracted below:
"6. The prosecution case is the following: The petitioner started a Company, namely, Nano Excel Enterprises Private Limited and it was registered at Hyderabad on 12/07/2007. In January 2010, the petitioner started another company under the name and style Nano Excel Power Corporation Limited. On 26/02/2010, the name of the company was changed as Nano Excel Corporation Limited. The accused collected crores of rupees from the general public under the guise of marketing products and also under the guise of providing shares in an alleged 100 MV Power plant at Arunachal Pradesh. Wide publicity was given through media and otherwise by the petitioner that the Nano Excel Power Corporation had entered into an agreement with the Government of Arunachal Pradesh for establishing a 100 MV Power Plant at Arunachal Pradesh. Believing the promises given by the accused, hundreds of persons took shares in the Power Project. It is also alleged that under the guise of marketing nano products, the accused collected crores of rupees from the general public after supplying poor quality and low cost products at high rates. Even according to the statement given by the petitioner to the Crime Branch, he had collected Rupees 347 crores from the general public. The customers deposited crores of rupees at the Thrissur office of the company. Products alleged to be nano products are not available in open market. At the inception, the Company started a package of Rs. 4,000/- for their products. Later, the face value of the package was increased to Rupees five thousand, then to six thousand and lastly to Rupees twelve thousand. The modus operandi was that if a person deposited money, the company would give him an ID number and he would be a distributor. Only a distributor who holds ID number could purchase products from the company. The distributor would get commission if he enrolls new members. Huge amounts were being paid to the so called distributors. The accused offered a return of Rs. 1,30,000/- in a week to a person who deposited Rs. 12,000/-, apart from the royalty income of Rs. 1,80,000/-. The activities in which the accused indulged themselves was a money circulation scheme under the guise of selling poor quality and low cost products, with an intent to make quick and easy money. False representations were made to the public in order to collect huge amounts and thus the accused cheated the public."
3. It is submitted by the petitioner that he was arrested on 31/08/2011 at Hyderabad and he was handed over to the Kerala Police. It is also stated that the formal arrest of the petitioner was recorded by the police on 12/09/2011 and he is in judicial custody.

4. Learned counsel for the petitioner submitted that the formal arrest of the petitioner was recorded in these cases on 22/09/2011 and therefore, the petitioner is entitled to default bail under S.167(2) of the Code of Criminal Procedure, since no charge sheet was filed within the time provided under S.167 of the Code of Criminal Procedure.

5. Learned Additional Director General of Prosecution submitted that though the formal arrest of the petitioner was recorded in some of the cases on 22/09/2011, the petitioner was produced before various courts on different dates on production warrant and for the purpose of considering whether the petitioner is entitled to default bail, the actual date of remand to judicial custody alone should be taken note of.

6. Sri.Rajit, learned counsel appearing for the petitioner, relied on the decision in Uday Mohanlal Acharya Vs. State of Maharashtra, (2001) 5 SCC 453 and contended that the accused has an indefeasible right to be released on bail when investigation is not completed within the specified period. Relying on the decision of the Supreme Court in Niranjan Singh and another Vs. Prabhakar Rajaram Kharote and others, AIR 1980 SC 785, the learned counsel contended that custody within the meaning of S.439 of the Code of Criminal Procedure would include recording of formal arrest, though the petitioner was not actually produced before Court. The counsel also relied on the decision of the Kerala High Court in Arun and another Vs. State of Kerala and another, 2010 (3) KHC 699.

7. Learned Additional Director General of Prosecution relied on the decision in Pramod Issac Vs. State of Kerala, 2009 (3) KLT 121Biju Vs. S.I. of Police, 2009 (4) KLT 778 and the decisions of the Supreme Court in State of West Bengal Vs. Dinesh Dalmia, AIR 2007 SC 1801 and Sadhwi Pragyana Singh Thakur Vs. State of Maharashtra, 2011 (4) KLJ 385 (SC). Learned Additional Director General of Prosecution also submitted that more than 400 cases have been registered against the petitioner at different police stations. The petitioner is being produced before different courts on various dates on production warrant. It is also submitted that if the date of the original arrest or the date of formal arrest recorded in other cases on 22/09/2011 is taken as the material date for considering whether the petitioner is entitled to default bail, it would cause very serious prejudice to the investigation of the cases.

8. It is not in dispute that the petitioner is involved in more than 400 cases. Those cases were registered at different police stations in the State of Kerala. The petitioner has to be produced before various Magistrate's Courts. It would take time to produce the petitioner before various courts. It is necessary to issue production warrants by the court concerned. On the issue of such production warrant, the petitioner has to be produced before that particular court. The judicial custody in a particular case would depend upon the date of remand on production of the petitioner before Court. The petitioner cannot say that he is entitled to default bail since his formal arrest was recorded in almost all the cases on 22/09/2011. If such a contention is accepted, the very purpose of S.167 would be defeated. It is practically impossible for the investigating agency to produce the petitioner before all the Magistrate's Courts immediately on the date of arrest. Production warrants have been applied for and issued by the court concerned. The investigating agency has to obey the orders passed by the court concerned for production of the petitioner before that court.

9. In Sadhwi Pragyana Singh Thakur Vs. State of Maharashtra, 2011 (4) KLJ 385 (SC), the Supreme Court held thus:
"20. Though this Court has come to the conclusion that the appellant has not been able to establish that she was arrested on October 10, 2008, even if it is assumed for the sake of argument that the appellant was arrested on October 10, 2008 as claimed by her and not on October 23, 2008 as stated by the prosecution, she is not entitled to grant of default bail because this Court finds that the charge sheet was filed within 90 days from the date of first order of remand. In other words, the relevant date of counting 90 days for filing charge sheet is the date of first order of the remand and not the date of arrest...."
10. In Chaganti Satyanarayana and others Vs. State of Andhra Pradesh, (1986) 3 SCC 141, the Supreme Court considered the scope and ambit of the proviso to sub-s.(2) of S.167 of the Code of Criminal Procedure and held thus:
"20. The words used in proviso (a) are "no magistrate shall authorise the detention of the accused persons in custody", "under this paragraph", "for a total period exceeding i.e. 90 days/60 days". Detention can be authorised by the magistrate only from the time the order of remand is passed. The earlier period when the accused is in the custody of a police officer in exercise of his powers under S.57 cannot constitute detention pursuant to an authorisation issued by the magistrate. It, therefore, stands to reason that the total period of 90 days or 60 days can begin to run only from the date of order of remand. 
……………. …………… 
23. The legislature has consciously referred to the date of arrest in S.167(5) but has made no such reference in S.167(2) or proviso (a) thereto. If it was the intention of the legislature that the period of remand of 15 days in the whole envisaged in sub­-s.(2) or the total period of 90 days/60 days prescribed in proviso (a) should be calculated from the date of arrest then the legislature would have expressly said so as it had done under S.167(5). 
………………. ……………… 
25. Thus in any view of the matter i.e. construing proviso (a) either in conjunction with sub-s.(2) of S.167 or as an independent paragraph, we find that the total period of 90 days under clause (i) and the total period of 60 days under clause (ii) has to be calculated only from the date of remand and not from the date of arrest."
11. In Pramod Issac Vs. State of Kerala, 2009 (3) KLT 121 a contention was put forward that the petitioner therein, who was an accused in several cases, was denied the benefit of the proviso to S.167(2) of the Code of Criminal Procedure, since his arrest was recorded in various cases on different dates, though the arrest was actually made several days before. Dealing with that contention, it was held:
"13. I do not think that the decision in (1992 (1) KLT SN 49 (C.No.64) SC = AIR 1992 SC 1768) would be helpful to the petitioner to support his contentions. If the contention of the petitioner is accepted, a situation would arise that an accused person could not be detained in judicial custody in other cases if the period of sixty days or ninety days as mentioned in the proviso to S. 167(2) is over in one case. There may be several cases against an accused. Sometimes, the allegations may be similar, but need not always be so. If it were to be held that after the expiry of the period of sixty days or ninety days, as the case may be, in one case, he cannot be detained at all in respect of the other cases, it would be contrary to the provisions of S.167. S.167 is aimed at completing the investigation at the earliest. It provides for releasing the accused on bail if the investigation is not completed within sixty days or ninety days, as the case may be. That is with reference to each case and that period cannot be tacked on or considered in respect of several other cases under investigation against the same accused. The accused has no right to say that investigation of all the cases against him should be completed within sixty days or ninety days, as the case may be, and if not, he should be released on bail in all the cases irrespective of the date of arrest in each case. That is not the purport and intent of S. 167(2). Therefore, the petitioner is not also entitled to contend that he is entitled to be released on bail under S.439, based on the above interpretation placed by him."
12. In Biju Vs. S.I. of Police, 2009 (4) KLT 778, the accused was released on bail in one case. While he was in judicial custody, two other crimes were registered. The accused contended that in the subsequently registered crimes he should be deemed to be in judicial custody and, therefore, he should not be arrested. Negativing this contention, it was held thus:
"6. The fact that a person is involved in several crimes and he is in judicial custody in one of the crimes does not mean that he is in judicial custody in all the crimes, unless his arrest is recorded in those cases. That the accused was in judicial custody in one crime and that the other crimes were registered at such point of time is not a ground to hold that he must be deemed to be in judicial custody in all the crimes. The release of the accused on bail in one case, therefore, cannot be treated as a bar for his arrest in the other cases. Therefore, I am not inclined to accept the contention of the petitioner that the petitioner is not liable to be arrested at this point of time."
13. In State of West Bengal Vs. Dinesh Dalmia, AIR 2007 SC 1801, the Supreme Court held thus:
"16 But the custody of police for investigation purpose cannot be treated judicial custody/ detention in another case. The police custody here means the Police custody in a particular case for investigation and not judicial custody in another case. This notional surrender cannot be treated as Police custody so as to count 90 days from that notional surrender. A notorious criminal may have number of cases pending in various police station in city or outside city, a notional surrender in pending case for another FIR outside city or of another police-station in same city, if the notional surrender is counted then the police will not get the opportunity to get custodial investigation. The period of detention before a Magistrate can be treated as device to avoid physical custody of the police and claim the benefit of proviso to sub-s.(1) and can be released on bail. This kind of device cannot be permitted under S.167 of the Cr.P.C. The condition is that the accused must be in the custody of the police and so called deemed surrender in another criminal case cannot be taken as starting point for counting 15 days police remand or 90 days or 60 days as the case may be...."
14. The decision of this Court in Arun and another Vs. State of Kerala and another, 2010 (3) KHC 699 is clearly distinguishable on facts. In that case, the petitioners, who were accused in two cases, were denied bail in one case on the ground that their formal arrest was not recorded in that crime. In that context, it was held that the petitioners were really produced before the Magistrate on the strength of a production warrant. If so, it could be treated as "brought before Court" for the purpose of entertaining the Bail Application under S.437 of the Code of Criminal Procedure. In the present case, such a situation did not arise.

15. The learned counsel for the petitioners relied on the decision of the Supreme Court in Niranjan Singh and another Vs. Prabhakar Rajaram Kharota and others, AIR 1980 SC 785, wherein it was held that where the accused had appeared and surrendered before the Sessions Judge, the Judge would have jurisdiction to consider the Bail Application as the accused would be considered to have been in custody within the meaning of S.439 of the Code of Criminal Procedure. The Supreme Court in State of West Bengal v. Dinesh Dalmia, AIR 2007 SC 1801, considered Niranjan Singh's case and held thus:
"As against this learned counsel for the accused respondent has invited our attention to the case of Niranjan Singn & Anr. v. Prabhakar Rajaram Kharote & Ors., (1980) 2 SCC 359. This case only relates to 'custody' under S.439 Cr.P.C. Therefore, this case does not provide us any assistance whatsoever."
16. In the present case, it is not clear as to whether the petitioner was remanded to judicial custody in the particular cases and if so, on what dates. That the investigating officer submitted before the various Magistrate's Courts that the formal arrest of the petitioner was recorded in all the cases on a particular date does not mean that the petitioner was remanded to judicial custody in those cases. The statement by the investigating officer that formal arrest of the accused was recorded in a particular case is not a substitute for passing an order of remand by the Court. Time starts from the date of remand for the purpose of computation of the period for default bail under the proviso to S.167(2) of the Code of Criminal Procedure. Time does not begin to run from the date mentioned by the investigating officer as the date of formal arrest of the petitioner.

17. For the aforesaid reasons, I am not inclined to accept the contentions put forward by the learned counsel for the petitioner.

18. The petitioner is involved in more than 400 cases. Very grave allegations are levelled against the petitioner and others. Even according to the petitioner, he had collected a sum of Rs. 347 crores from the general public. The investigation of the case is not over. All the accused persons have not been arrested. It is relevant to note that the petitioner was not available at all and his arrest could be made by the investigating officer with great difficulty. In the facts and circumstances, I am not inclined to grant bail to the petitioner at this stage. However, the petitioner would be entitled to approach the Magistrate's Court concerned for default bail under the proviso to S.167(2) of the Code of Criminal Procedure, in which case, the learned Magistrate shall consider the request in accordance with law.

Accordingly, the Bail Applications are dismissed.

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