Pradip Mohanty, J.—By means of this writ petition filed in the nature of habeas corpus, jurisdiction of this Court has been invoked to declare the detention of the petitioner pursuant to the order of remand dated 15.09.2014 passed in S.P.E. Case No.42 of 2014 pending on the file of learned Special Chief Judicial Magistrate, C.B.I., Bhubaneswar as illegal and further to issue a writ of habeas corpus directing release of the petitioner forthwith from such illegal detention.
2. The facts giving rise to filing of the writ petition, succinctly put, are as follows:
On 07.02.2013, an FIR was lodged by one Sukumar Panigrahi at Kharvela Nagar Police Station, Bhubaneswar alleging therein that Pradip Sethy and others of Arthatatwa Multipurpose Co-operative Society Ltd. (for short "ATMPCS") cheated him in a deceitful manner and misappropriated Rs. 17.00 lakhs from him by fraudulent means. The said FIR was registered as Kharvela Nagar P.S. Case No.44 of 2013 corresponding to C.T. Case No.560 of 2013 on the file of S.D.J.M., Bhubaneswar. During investigation, it revealed that certain financial transactions took place between Arthatatwa Infra India Ltd. and Kamyab Television Pvt. Ltd., of which the petitioner was the Managing Director. The investigating agency called upon the petitioner to appear before it. Apprehending arrest the petitioner approached this Court for anticipatory bail in BLAPL No.15350 of 2013. By order dated 25.06.2013 this Court directed that in the event of arrest the petitioner shall be released on bail by the arresting officer on such terms and conditions as would be deemed just and proper by the arresting officer.
While investigation in Kharvela Nagar P.S. Case No.44 of 2013 was going on, various financial scams nicknamed as chit-fund scams, affecting a large number of depositors across the State of Odisha, came to limelight. As the role of some political and influential personalities behind the said scams was foreseen, predicting biased and perfunctory investigation by the State police agency, one Alok Jena filed Writ Petition (Civil) No.413 of 2013 before the Apex Court seeking transfer of investigation from the State police agency to the Central Bureau of Investigation (CBI). The State Government on being noticed filed an affidavit inter alia stating therein that larger conspiracy angle was being examined in three cases, viz., (i) CID P.S. Case No.39 dated 18.07.2012 registered against M/s Seashore Group of Companies; (ii) Kharvalenagar P.S. Case No.44 dated 07.02.2013 registered against M/s Artha Tatwa Group of Companies; and (iii) EOW P.S. Case No.19 dated 06.06.2013 registered against M/s Astha International Ltd. It was also stated that although charge-sheets have been filed in these three cases, investigation has been kept open under Section 173(8), Cr.P.C. to investigate the larger conspiracy angle. Ultimately, the said writ petition came to be disposed of by the Apex Court on 09.05.2014 along with a batch of similar writ petitions filed in respect of the chit-fund scams which hit the States of West Bengal, Tripura and Assam {See Subrata Chattoraj v. Union of India and others, (2014) 58 OCR (SC) 905}. The Apex Court, while directing transfer of cases from State Police Agency to CBI, observed as follows:
34. In the circumstances, we are inclined to allow all these petitions and direct transfer of the following cases registered in different police stations in the State of West Bengal and Odisha from the State Police Agency to the Central Bureau of Investigation (CBI).
A. State of West Bengal:
1. All cases registered in different police stations of the State Against Saradha Group of Companies including Crime No.102 registered in the Bidhannagar Police Station, Kolkata (North) on 6th May, 2013 for offences punishable under Sections 406, 409, 420 and 120B of the IPC.
2. All cases in which the investigation is yet to be completed registered against any other company upto the date of this order.
3. The CBI shall be free to conduct further investigation in terms of Section 173(8) of the Cr.P.C. in relation to any case where a charge-sheet has already been presented before the jurisdiction court against the companies involved in any chit-fund scam.
B. State of Odisha: All cases registered against 44 companies mentioned in our order dated 26th March, 2014 passed in Writ Petition (C) No. 413 of 2013. The CBI is also permitted to conduct further investigations into all such cases in which charge sheets have already been filed."
In obedience to the direction of the Apex Court, the CBI on 12.05.2014 constituted a Special Investigating Team (SIT) under Annexure-3. The SIT, CBI registered RC No.47/S/ 2014-KOL dated 05.06.2014 by clubbing 8 FIRs already registered by the State police (including FIR No.44 of 2013 registered on 07.02.2013 by Kharvelanagar P.S.) into one FIR and treated above mentioned 8 FIRs as FIR in the said case. The said case was registered under Sections 120-B/294/341/406/409/420/467/468/471/506/34 I.P.C. and Sections 3, 4 and 5 of Prize Chits and Money Circulation Schemes (Banning) Act, 1978.
During the course of further investigation, the SIT summoned the petitioner, as the Managing Director of Kamyab Television Pvt. Ltd., to explain receipt of Rs. 90.00 lakhs in its two bank accounts maintained with Axis Bank, Bhubaneswar and Syndicate Bank, Bhubaneswar from the bank account of M/s Artha Tatwa Infra Ltd. maintained with the ING Vyasa Bank, Kharvelnagar Branch Bhubaneswar. The petitioner appeared before the SIT and offered his explanation. But, on 14.09.2014, the SIT notwithstanding the explanation offered by the petitioner arrested him, even though the petitioner produced anticipatory bail order dated 25.06.2013 (Annexure-4) granted by this Court in BLAPL No.15350 of 2013. On 15.09.2014, the SIT produced the petitioner before the learned Special C.J.M., CBI, Bhubaneswar and the petitioner was remanded to judicial custody till 26.09.2014.The bail application of the petitioner, which was filed on the date of his production, i.e., on 15.09.2014 annexing a copy of the anticipatory bail order under Annexure-4, was taken up and dismissed on the next date (16.09.2014) by the learned Special CJM, CBI, Bhubaneswar. The order dated 15.09.2014, whereby the petitioner was remanded to judicial custody, and the order dated 16.09.2014, whereby the bail application of the petitioner was rejected by the learned C.J.M., CBI, Bhubaneswar, have been marked as Annexure-5 series.
Thereafter, the petitioner filed an application for bail under Section 439 Cr.P.C. before the learned Sessions Judge, Khurda at Bhubaneswar which was also dismissed on 25.09.2014. Against the said order of rejection, the petitioner approached this Court for bail under Section 439, Cr.P.C. in BLAPL No.20204 of 2014, but the same was dismissed as withdrawn on 24.12.2014. Meanwhile, on 11.12.2014, the SIT filed preliminary charge-sheet against the petitioner under Sections 120-B/294/341/406/409/420/467/468/ 471/506/34 I.P.C. and Sections 3, 4 and 5 of Prize Chits and Money Circulation Schemes (Banning) Act, 1978 and the learned Special CJM, CBI, Bhubaneswar took cognizance of the offences. After preliminary charge-sheet was filed, the petitioner moved bail for the second time before the learned Special CJM, CBI, Bhubaneswar and the same was also dismissed on 07.01.2015. Against the said order of rejection, the petitioner again moved for bail under Section 439, Cr.P.C. before the learned Sessions Judge, Khurda at Bhubaneswar and the same was also dismissed on 16.02.2015. Aggrieved by the said order of rejection, the petitioner again approached this Court under Section 439, Cr.P.C. in BLAPL No.1224 of 2015 and the said application was dismissed on 15.05.2015.
3. Mr. U.C. Patnaik, learned counsel appearing for the petitioner strenuously urged
(i) that vide order dated 25.06.2013 passed in BLAPL No.15350 of 2013 the petitioner having been granted anticipatory bail by this Court in connection with Kharvelnagar P.S. Case No.44 of 2013, his arrest on 14.09.2014 and consequent remand to judicial custody on 15.09.2014 in connection with RC No.47/S/2014-KOL dated 05.06.2014 in which FIR in Kharvelnagar P.S. Case No.44 of 2013 was clubbed, was illegal;
(ii) that the Apex Court in judgment dated 09.05.2014 having specifically directed for "further investigation" in Kharvelnagar P.S. Case No. 44 of 2013, wherein charge-sheet was already filed and charges against six accused persons were already framed, registration of second FIR (RC No.47/S/2014-KOL dated 05.06.2014) by the CBI instead of conducting "further investigation", was contrary to the direction of the Apex Court and not legally permissible, and subsequent arrest/detention of the petitioner on 14.09.2014 and remand to judicial custody on 15.09.2014 was unsustainable in law;
(iii) that arrest of the petitioner offended the provisions of Sections 41, 41A and 50 of Cr.P.C. and infringed the fundamental rights guaranteed under Articles 21 and 22 of the Constitution of India; and
(iv) that since not only initial order of remand dated 15.09.2014 is illegal, orders of remand passed by the learned Magistrate later having contravened the provisions of Sections 167 and 309, Cr.P.C., the detention of the petitioner was illegal.
In support of the above submissions, learned counsel for the petitioner placed reliance on the decisions in State of Bihar v. Rambalak Singh and others, (1966) 3 SCR 344; Madhu Limaye and others v. (Unknown), (1969) 1 SCC 292; Prafulla Kumar Nayak v. State of Orissa, 1994 (II) OLR 461; D.K. Basu v. State of West Bengal, (1997) 1 SCC 416; Siddharam Satlingappa Mhetre v. State of Maharashtra and others, (2011) 1 SCC 694; Mannubhai Ratilal Patel through Ushaben v. State of Gujarat and others, (2013) 1 SCC 314; Vinay Tyagi v. Irshad Ali Alias Deepak and others, (2013) 5 SCC 762; Amitbhai Anilchandra Shah v. Central Bureau of Investigation and another, (2013) 6 SCC 348; Arnesh Kumar v. State of Bihar and another, (2014) 8 SCC 273; Mrs. N. Ratnakumari v. State of Odisha and others, 2014 (II) OLR, 459 and Abdul Basit Alias Raju and others v. Mohd. Abdul Kadir Chaudhary and another, (2014) 10 SCC 754.
4. Sri K. Raghavacharyulu supported by Mr. V. Narasingh, learned counsel appearing for the CBI, per contra, submitted that the instant writ petition filed in the nature of habeas corpus was not maintainable, inasmuch as, the petitioner was remanded to judicial custody by virtue of a valid order of remand passed on 15.09.2014 by the learned Magistrate having competent jurisdiction. Such order of remand was passed by the learned Magistrate upon hearing the learned counsel for the respective parties and after due application of mind to the materials placed on record, such as, case diary, arrest memo, medical record, remand report, search and seizure reports and all other relevant documents. Since there was due application of mind to the materials on record and the order of remand dated 15.09.2014 was passed by the learned Magistrate after recording subjective satisfaction, it could not be said that the order of remand of the petitioner to judicial custody suffered from any illegality, much less absolute illegality. Therefore, the detention of the petitioner by virtue of a valid remand order could not be said to be illegal.
He further submitted that it was true that the petitioner was granted anticipatory bail by this Court vide order dated 25.06.2013 passed in BLAPL No.15350 of 2013 in connection with Kharavela Nagar P.S. Case No.44 of 2013. But, as a matter of fact, the petitioner was not named as an accused in the FIR nor was he arrested by the State police. In the said case, charge sheet was filed on 11.07.2013 and cognizance was taken on 27.07.2013 by the learned S.D.J.M., Bhubaneswar under Sections 406, 420 and 120B, IPC. In the said case, charges were also framed by the learned S.D.J.M., Bhubaneswar on 10.02.2014. While the matter stood thus, pursuant to the mandate of the Apex Court issued on 09.05.2014, the CBI registered RC No.47/S/2014-KOL on 05.06.2014 by clubbing eight FIRs already lodged in different police stations against Artha Tatwa Company, including FIR No. 44 of 2013, under Sections 120B/294/341/406/409/420/467/468/471/506/34, I.P.C. and Sections 3, 4 and 5 of Prize Chits and Money Circulation Schemes (Banning) Act, 1978. After registration of the case, the CBI conducted raid, search and seizure operations pertaining to the petitioner on 16.08.2014 and finally on 14.09.2014 the petitioner was arrested on the allegation that he admitted to have received a sum of Rs. 90.00 lakhs. The petitioner also confirmed that the grounds of arrest were informed to him in presence of two independent witnesses and his arrest was informed to him as well as to the male member of his family, i.e., to his father and signed twice the memo of arrest, but never disclosed to the investigating officer that he had an anticipatory bail order in his favour. B e that as it may, RC No.47/S/2014-KOL dated 05.06.2014 was registered by the CBI for commission of higher offences, such as, Sections 409, 467 & 468, IPC, etc. Therefore, learned counsel for the CBI submitted that RC No.47/S/2014-KOL dated 05.06.2014 having been registered by the CBI for commission of higher offences, the anticipatory bail order obtained by the petitioner in connection with Kharvelnagar P.S. Case No.44 of 2013, which was registered for lesser offences, would not ennure to his benefit.
With regard to the question of maintainability of second FIR, learned counsel for the CBI submitted that the FIR in Kharvelnagar P.S. Case No.44 of 2013 was lodged by one complainant against a number of individuals and "ATMPCS" for commission of offences of cheating and breach of trust punishable under Sections 420, 406 and 120B, IPC, whereas FIR in RC No.47/S/2014-KOL dated 05.06.2014 was registered by the CBI for commission of very graver offences, such as, criminal breach of trust by banker and merchant, forgery, etc. punishable under Sections 409, 467 & 468, besides Sections 3, 4 & 5 of Prize Chits and Money Circulation Scheme (Banning) Act, 1978. Therefore, the second FIR in RC No.47/S/2014-KOL dated 05.06.2014 being not for the same cause of action or in respect of the very same offences said to have been committed in the FIR in Kharvelanagar P.S. Case No.44 of 2013, it could not be said the second FIR was not maintainable.
With regard to the contention that arrest of the petitioner was illegal as it violated provision of Sections 41, 41A and 50 of Cr.P.C., Mr. Acharyulu pointed out that in the present case there has been no violation of above noted provisions.
To support his submissions, learned counsel for the CBI placed reliance on the decisions rendered in Manubhai Ratilat Patel v. State of Gujarat, 2013 (1) SCC 314; Minati Dash v. State of Orissa and others, 2013 (II) OLR 912; Laxman Rao v. Jl. Magistrate, First Cl., Parvatipuram, 1970 (3) SCC 501; Kanu Sanyal v. District Magistrate, Darjeeling, 1974 (4) SCC 141; B. Ramachandra Rao v. State of Orissa, 1972 (3) SCC 256; Purak Chand Chandak & Another v. State of Orissa and another, 1994 (II) OLR 541; Gurbaksh Singh Sibbia v. State of Punjab, 1980 (2) SCC 565; Union of India v. Padam Narain Aggrawal, 2008 (13) SCC 305; Prahlad Singh Bhati v. NCT, Delhi, 2001 (4) SCC 280; Hamida v. Rashid, 2008 (1) SCC 474; Nirmal Singh Kohlan v. State of Punjab, 2009 (1) SCC 441; Rashmi Rekha Thatoi v. State of Orissa and others, 2012 (5) SCC 690; Dinesh Dalmia v. CBI, 2007 (8) SCC 770; Suresh Kumar v. State of Maharashtra, 2013 (3) SCC 77; Islamic Academy of Education v. State of Karnataka, 2003 (6) SCC 697; Haryana Financial Corporation & Another v. Jagadamba Oil Mills & Another, 2002 (3) SCC 496; Vishnu Traders v. State of Haryana, 1995 (SUPP) (1) SCC 461 and Muniappan v. State of Punjab, (2010) 9 SCC 567.
5. This Court heard learned counsel for both the parties and perused the lower court record as well as the records of this Court. This Court also went through the judgments relied on by the respective parties.
6. Before delving into the submissions raised by the learned counsel for the parties, it is of relevance to note at the outset that ''habeas corpus'' is a writ in the nature of an order calling upon the person who has detained another to produce the latter before the Court, in order to let the Court know on what ground he has been confined and to set him free if there is no legal justification for the imprisonment. If the detention appears to be in violation of the procedure established by law, the Court has no option but to allow his prayer. It is also clear that when physical restraint is put upon a person in accordance with law, there is no right to habeas corpus unless the law is unconstitutional or the order is ultra vires the statute. The Apex Court in Manubhai Ratilal Patel v. State of Gujarat, 2013 (1) SCC 314 has held that a writ of habeas corpus is not to be entertained when a person is committed to judicial custody or police custody by the competent court by an order which prima facie does not appear to be without jurisdiction or passed in an absolutely mechanical manner or wholly illegal. In the said judgment, the Apex Court by referring to the judgment in the cases of Col. B. Ramachandra Rao v. State of Orissa, 1972 (3) SCC 256 and Kanu Sanyal v. District Magistrate, Darjeeling, 1974 (4) SCC 141 also held that the court is required to scrutinise the legality or otherwise of the order of detention which has been passed. Unless the court is satisfied that a person has been committed to jail custody by virtue of an order that suffers from the vice of lack of jurisdiction or absolute illegality, a writ of habeas corpus cannot be granted.
7. Keeping the above dictum in mind, this Court proceeds to examine the contentions raised by the learned counsel for the parties. According to learned counsel for the petitioner, in view of anticipatory bail granted to the petitioner in Kharvelnagar P.S. Case No.44 of 2013, he ought not to have been arrested by the CBI and remanded to custody. Section 438, Cr.P.C. stipulates that when a person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session seeking direction for grant of bail under the said section. A perusal of Section 438, Cr.P.C. would show that the grant of bail under the said section is offence specific. It uses the phrase "a non-bailable offence". Therefore, the Apex Court in Gurbaksh Singh Sibbia v. State of Punjab, 1980 (2) SCC 565 held that the Court which grants anticipatory bail must take care to specify the offence or offences in respect of which alone the order will be effective and that the power should not be exercised in a vacuum. The Apex Court in the said case further held that a ''blanket order'' of anticipatory bail should not generally be passed. Normally, a direction should not be issued under Section 438(1) to the effect that the applicant shall be released on bail "whenever arrested for whichever offence whatsoever." A blanket order of anticipatory bail is bound to cause serious interference with both the right and the duty of the police in the matter of investigation because, regardless of what kind of offence is alleged to have been committed by the applicant and when, an order of bail which comprehends allegedly unlawful activity of any description whatsoever, will prevent the police from arresting the applicant even if he commits, say, a murder in the presence of the public. Therefore, the Court which grants anticipatory bail must take care to specify the offence or offences in respect of which alone the order will be effective. An order under Section 438, Cr.P.C. is a device to secure the individual''s liberty, it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations likely or unlikely.
In Prahlad Singh Bhati v. NCT, Delhi, 2001 (4) SCC 280 the Apex Court held that mere initial grant of anticipatory bail for lesser offence, did not entitle an accused to insist for regular bail even if he was subsequently found to be involved in the case of murder. With the change of the nature of the offence, the accused becomes dis entitled to the liberty granted to him in relation to a minor offence, if the offence is altered for an aggravated crime.
From the discussions made above, it is clear that when an accused obtains an anticipatory bail for a lesser offence and thereafter during the investigation it surfaces that accused committed a graver offence and the sections of the concerned FIR are altered or separate FIR is registered in a different police station, depending on the facts, the order of anticipatory bail obtained by accused for the lesser offence would not ennure to his benefit and accused is not entitled to the protection granted under Section 438, Cr.P.C.
In the instant case, as already indicated, on 25.06.2013 the petitioner was granted anticipatory bail by this Court in BLAPL No.15350 in connection with Kharvelnagar P.S. Case No.44 of 2013, which was registered for alleged commission offences punishable under Sections 420, 406 and 120-B, IPC. In obedience to the mandate of the Apex Court vide judgment dated 09.05.2014 rendered in Subrata Chattoraj (supra), when the CBI took up the matter for further investigation, on 05.06.2014 it registered a separate FIR bearing RC No.47/S/2014-KOL by clubbing eight FIRs including the FIR in Kharavelnagar P.S. Case No.44 of 2013, for alleged commission of offences punishable under Sections 120B/294/341/406/409/420/467/468/471/506/34, IPC and Sections 3, 4 and 5 of Prize Chits and Money Circulation Schemes (Banning) Act, 1978. Thus, the FIR registered by the CBI was for very serious offences like Sections 409 & 467, IPC under which an accused can be sentenced to imprisonment for life or rigorous imprisonment for ten years. Therefore, the anticipatory bail obtained by the petitioner in Kharvelnagar P.S. Case No.44 of 2013 for lesser offences cannot be of any help to the petitioner.
Apart from the above, on perusal of the records it reveals that after anticipatory bail order was passed on 25.06.2013 by this Court in BLAPL No.15350 of 2013, the petitioner was not arrested in connection with Kharavelnagar P.S. Case No.44 of 2013, but after registration of case by the CBI bearing RC No.47/S/2014-KOL for commission of other offences, some of which are of graver in nature, the petitioner was arrested. Therefore, on the basis of earlier anticipatory bail order, the petitioner, who was arrested in connection with RC No.47/S/2014-KOL, could not have been released.
The decision of the Apex Court, as relied on by the petitioner, rendered in Siddharam Satlingappa Mhetre v. State of Maharashtra and others, AIR 2011 SC 312, which lays down that once anticipatory is granted the same should ordinarily remain valid till end of trial, does not take into account a case of present nature where later on serious offences like Sections 409 & 467 have been added. Thus, the said case is factually distinguishable.
8. The second submission of learned counsel for the petitioner is that the Apex Court in judgment dated 09.05.2014 having specifically directed for "further investigation" in Kharvelnagar P.S. Case No. 44 of 2013, registration of RC No.47/S/2014-KOL dated 05.06.2014 by the CBI, is contrary to the direction of the Apex Court and consequently arrest/detention of the petitioner on 14.09.2014 and remand to judicial custody on 15.09.2014 is unsustainable in law. Needless to mention, RC No.47/S/2014-KOL dated 05.06.2014 was registered by the CBI after the judgment dated 09.05.2014 of the Apex Court rendered in Subrata Chattoraj (supra). As it reveals, in the said judgment the Apex Court, so far as the State of Odisha is concerned, has directed transfer of all the cases registered in different police stations against 44 companies to the Central Bureau of Investigation (CBI) and also permitted to conduct further investigations into all such cases in which charge-sheets have already been filed. The rationale behind such direction, as observed by the Apex Court in the said judgment, is to conduct effective investigation as to the trail of money collected by the group of companies on which the State police had not made any significant headway because of inter-State ramifications. Further, the investigation conducted till then had put a question mark on the role of regulatory authorities like SEBI, Registrar of Companies and officials of the RBI within whose respective jurisdictions and areas of operation the scam not only took birth but flourished unhindered. The investigation by the State Police in a scam that involved thousand of crores collected from the public allegedly because of the patronage of people occupying high positions in the system will hardly carry conviction especially when even the regulators who were expected to prevent or check such a scam appear to have turned a blind eye to what was going on. That apart, the larger conspiracy angle although under investigation has also not made much headway partly because of the inter-State ramifications, which the investigating agencies need to examine but are handicapped in examining. The above being the reason behind the direction of the Apex Court and since specific direction for investigation by the CBI was sought for in Writ Petition (Civil) No.413 of 2013 filed before the Apex Court, it is incorrect to contend that the Apex Court has permitted CBI only to the extent of conducting further investigation in terms of Section 173(8), Cr.P.C. Rather a reading of paragraphs 30, 31 and 34 of the judgment of the Supreme Court makes it clear that vis-a-vis the six features delineated in para 30, the Supreme Court thought transfer of ongoing investigation from State police to the CBI was imperative. The Supreme Court also made it clear that each of six features/aspects call for investigation by CBI with a view to ensure credibility of such investigation. Accordingly, the Apex Court directed for the investigations into all such cases. Further, in para 34 the Supreme Court expressed its willingness to allow the petitions, one of which was W.P.(Crl) No.413 of 2013 with a prayer for direction for investigation by CBI. In such back-ground, it is reiterated that direction of the Supreme Court for further investigation cannot be confined to mean only for an investigation in terms of Section 173(8), Cr.P.C.
Above apart, FIR in Kharvelnagar P.S. Case No.44 of 2013 was lodged by one complainant against Pradip Sethy and others of "ATMPCS" for commission of offences of cheating and breach of trust punishable under Sections 420, 406 and 120B, IPC, whereas FIR in RC No.47/S/2014-KOL dated 05.06.2014 was registered by the CBI for commission of very graver offences, such as, criminal breach of trust by banker, merchant & for forgery, etc., punishable under Sections 409, 467, etc., besides Sections 3, 4 & 5 of Prize Chits and Money Circulation Scheme (Banning) Act, 1978. Therefore, the second FIR in RC No.47/S/2014-KOL dated 05.06.2014 being not for the same cause of action or in respect of the very same offences said to have been committed in the FIR in Kharvelanagar P.S. Case No.44 of 2013, it cannot be said that the second FIR is not maintainable. Furthermore, merely because CBI has registered a new FIR in order to maintain their official paraphernalia, the petitioner cannot say that order of the Apex Court for further investigation has been violated. On the other hand, if the CBI had not registered the FIR and directed its investigation with regard to larger conspiracy and money trail, the intent of the Apex Court in allowing the writ petition before it would have become otiose.
Needless to mention, the petitioner has not challenged registration of second FIR by filing appropriate proceeding. So, in a proceeding of habeas corpus he cannot take the plea of illegality of second FIR for carrying out further investigation, which according to him ultimately vitiates arrest/detention order dated 14.09.2014 and remand order dated 15.09.2014. It is the settled principle of law that even otherwise filing of second FIR is permissible. In the case of Nirmal Singh Kohlan v. Padma Rarain Aggarwal and others, reported in 2009 (1) SCC 441, the Apex Court observed that the second FIR would be maintainable not only because there were different versions but when new discovery was made on factual foundations. If the police authorities did not make a fair investigation and left out conspiracy aspect of the matter from the purview of its investigation, it would be appropriate to direct investigation in respect of an offence which is distinct and separate from the one for which the FIR had already been lodged. The Apex Court also observed that if the CBI came to know of commission of other and further offence involving a larger conspiracy which required prosecution against a larger number of persons, who had not been proceeded against at all by local police officers, even lodging of second FIR would not be a bar.
9. Coming to third submission of the learned counsel for the petitioner that arrest of the petitioner offends the provisions of Sections 41, 41A and 50 of Cr.P.C. and infringes his fundamental rights guaranteed under Articles 21 and 22 of the Constitution of India, it is apt to mention here, Section 41 provides for the cases when police may arrest a person without warrant. Section 41(1) stipulates that any police officer may, without an order from a Magistrate and without a warrant, arrest any person under the circumstances mentioned in clauses (a), (b) and (ba) thereof. Clause (a) speaks about the person who commits, in the presence of a police officer, a cognisable offence; Clause (b) says about the person against whom a reasonable complaint has been made, or credible information has been received or a reasonable suspicion exists that he has committed a cognisable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, subject to satisfaction of the conditions mentioned in sub-clauses (i) and (ii); and Clause (ba) stipulates that a person against whom credible information has been received that he has committed a cognisable offence punishable with imprisonment for a term which may extend to more than seven years whether with or without fine or with death sentence and the police officer has reason to believe on the basis of that information that such person has committed the said offence. Although in sub-clause (b) of sub-section (1) to Section 41, a condition has been provided that the police officer shall record, while making arrest, his reasons in writing, as a matter of fact the present case does not come within the ambit of Section 41(1)(b). The reason being, in the instant case the petitioner, besides other offences, is allegedly involved under Sections 409 and 467, IPC, which prescribe punishment of imprisonment for life or rigorous imprisonment for ten years, whereas Section 41(1)(b) deals with a case which prescribes punishment of less than seven years or which may extend to seven years. Rather, the present case is clearly covered under Section 41(1)(ba), Cr.P.C. Thus, it cannot be said that there has been any violation of Section 41, Cr.P.C. by non-recording of reason.
Section 41-A provides for notice of appearance before police officer. In sub-section (1) thereof, it is provided that the police officer may, in all cases where the arrest of a person is not required under the provisions of subsection (1) of Section 41, issue a notice directing the person against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists that he has committed a cognisable offence to appear before him or at such other place as may be specified in the notice. This means, the cases, which are covered by Section 41(1), have been excluded from the purview of Section 41-A. The present case, as indicated earlier, is squarely covered by Section 41(1)(ba). Therefore, Section 41-A has no application to the case of the petitioner. So, the question of violation of the provisions of the said section does not arise.
With regard to violation of Section 50, Cr.P.C., the provision of the said section requires that a person arrested to be informed of grounds of arrest and of right to bail. In this context, it is of relevance to note that after registration of the case, the CBI conducted raid, search and seizure operations pertaining to the petitioner on 16.08.2014 and finally on 14.09.2014 the petitioner was arrested on the allegation that he admitted to have received a sum of Rs. 90.00 lakhs. As would be evident from the memo of arrest, the grounds of arrest were informed to the petitioner in presence of two independent witnesses and intimation with regard to his arrest was sent to the male member of his family, i.e., his father and in token of the same the petitioner signed twice in the memo of arrest. So, in no stretch of imagination it can be said that arrest of the petitioner violates the provision of Section 50, Cr.P.C.
Now, it is to be seen whether there has been violation of Articles 21 and 22 of the Constitution of India. Article 21 postulates that no person shall be deprived of his life or personal liberty except according to procedure established by law. The object of this article is that before a person is deprived of his life or personal liberty, the procedure established by law must be strictly followed and must not be departed from to the disadvantage of the person affected. In the instant case, the allegation against the petitioner covers commission of cognisable offences and evidently the petitioner was arrested as per the procedure established by law and remanded to judicial custody by the magistrate having competent jurisdiction. Therefore, it cannot be said that there has been violation of Article 21 of the Constitution of India. So far as Article 22 of the Constitution of India is concerned, it is enshrined therein that no person who is arrested shall be detained in custody without being informed of the grounds for such arrest and that every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest and no such person shall be detained in custody beyond the said period without the authority of a magistrate. In the case at hand, as stated earlier, the petitioner was arrested on 14.09.2014 and on the very next day, i.e., on 15.09.2014 the SIT, CBI produced the petitioner before the learned Special C.J.M., CBI, Bhubaneswar, the magistrate having competent jurisdiction, who remanded the petitioner to judicial custody till 26.09.2014. From the arrest memo it reveals that the grounds of arrest were informed to the petitioner in presence of two independent witnesses and intimation with regard to his arrest was sent to his father. In the circumstance, it cannot be said that there has been violation of Article 22 of the Constitution of India.
10. It was lastly submitted by learned counsel for the petitioner that orders of remand passed by the learned Magistrate having contravened the provisions of Sections 167 and 309, Cr.P.C., the detention of the petitioner was illegal. With regard to contravention of Section 167, Cr.P.C., learned counsel for the petitioner specifically submitted that in the instant case, the date of arrest of the petitioner being 14.09.2014 and the date of his remand to judicial custody being 15.09.2014, under the proviso (a)(i) to Section 167(2), Cr.P.C. he should have been remanded maximum for a period of 120 days, i.e., till 14.01.2015. But, even though preliminary charge-sheet was filed on 11.12.2014, the learned Magistrate took cognizance of offences on 10.04.2015. Thus, detention of the petitioner from 14.01.2015 to 10.04.2015 being illegal, he is entitled to be released forthwith. With regard to contravention of Section 309, Cr.P.C., learned counsel for the petitioner particularly urged that the petitioner was under illegal detention on the date of filing of the writ petition as well as on the date of return, inasmuch as, on 01.06.2015, the date on which the writ petition was presented, and on 25.06.2015, which was the date of return, the petitioner was remanded to judicial custody exceeding the period of 15 days. Therefore, the petitioner is liable to be released forthwith.
The above submission of the petitioner is of two folds. The first part pertains to contravention of proviso (a)(i) to Section 167(2), Cr.P.C. whereas the second part relates to contravention of proviso to Section 309(2), Cr.P.C. Before delving into this issue, this Court carefully and meticulously perused the provisions of Sections 167 and 309, Cr.P.C. as well as the records in S.P.E. Case No.42 of 2014 of the court of learned Special C.J.M., CBI, Bhubaneswar. A bare reading of Sections 167 and 309, Cr.P.C., would show that proviso (a)(i) to Section 167(2), Cr.P.C. applies prior to filing of the charge-sheet or prior to taking of cognizance by the court of the offences disclosed in the charge-sheet. Once such charge-sheet is filed or cognizance is taken by the court, the provisions of Section 309(2), Cr.P.C. would come into play. So far as contravention of proviso (a)(i) to Section 167(2), Cr.P.C. is concerned, after Odisha amendment made vide Act 11 of 1997 with effect from 05.11.1997, proviso (a)(i) to Section 167(2), Cr.P.C. provides that no Magistrate shall authorise the detention of the accused person in custody under this Section for a total period exceeding 120 days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years. In this case, admittedly, the petitioner is involved in an offence punishable with imprisonment for life or imprisonment for a term of not less than ten years. As it reveals from the lower court records, the petitioner was arrested on 14.09.2014 in connection with RC No.47/S/2014-KOL dated 05.06.2014. He was produced before the learned Special C.J.M., CBI, Bhubaneswar on 15.09.2014 and remanded to judicial custody till 26.09.2014. On 26.09.2014, the petitioner was produced and again remanded to judicial custody till 30.09.2014. On 30.09.2014, the petitioner was produced and remanded to judicial custody till 13.10.2014. On 13.10.2014, the petitioner was produced and remanded to judicial custody till 24.10.2014. On 24.10.2014, the petitioner was produced and remanded to judicial custody till 01.11.2014/13.11.2014. On 13.11.2014, the petitioner was produced and remanded to judicial custody till 26.11.2014. On 26.11.2014, the petitioner was produced and remanded to judicial custody till 09.12.2014. On 09.12.2014, the petitioner was produced and remanded to judicial custody till 22.12.2014/02.01.2015/12.01.2015. However, in the meantime, on 11.12.2014 the CBI filed preliminary charge-sheet against the petitioner and other co-accused persons and on the very same day the learned Special C.J.M., CBI, Bhubaneswar took cognizance of offence under Sections 120-B, 406, 409, 411, 420, 468 and 471, IPC read with Sections 4, 5 & 6 of the Prize Chits & Money Circulation Schemes (Banning) Act, 1978. As this fact is clearly borne out from the order-sheet maintained in S.P.E. Case No.42 of 2014 of the court of learned Special C.J.M., CBI, Bhubaneswar, the submission of the learned counsel for the petitioner, that cognizance was taken on 10.04.2015, is without any basis. In fact, on 10.04.2015 supplementary charge-sheet was filed against accused Jagabandhu Panda, Manoj Kumar Pattnaik and Pramod Kumar Panda and the learned Magistrate after perusing the charge-sheet and other documents took cognizance of offence under Section 120-B/406/409/420/34, IPC and Sections 4, 5 & 6 of Prize Cheat & Money Circulation Scheme (Banning) Act, 1978. As the date of arrest of the petitioner was 14.09.2014 and the date of his remand to judicial custody was 15.09.2014, the period of 120 days was to be expired on 14.01.2015. But, as already indicated, since preliminary charge-sheet was filed on 11.12.2014 and cognizance was taken on that day itself, it is well within the period of 120 days. Thus, the allegation, that the petitioner from 14.01.2015 to 10.04.2015 was under illegal detention, as the period of his remand exceeded 120 days in contravention of the proviso (a)(i) to Section 167(2), Cr.P.C., is contrary to records and thus rejected.
So far as petitioner''s second part of submission, which relates to contravention of the provisions of Section 309(2), Cr.P.C., is concerned, this Court is called upon to examine whether or not on 01.06.2015, the date on which the writ petition was filed, and on 25.06.2015, which was the date of return, and on 04.12.2015 when the hearing was concluded, the petitioner was remanded to judicial custody exceeding the period of 15 days and, if so, whether the petitioner is entitled to be released forthwith. At the outset, it is of relevance to note the position of law as delineated in the case of Kanu Sanyal v. District Magistrate, Darjeeling, 1974 (4) SCC 141. In this context, it would be appropriate to quote relevant position of para-4 of the said judgment:
" xx xx xx
This Court speaking through Wanchoo, J., (as he then was) said in A.K. Gopalan v. Government of India:
"It is well settled that in dealing with the petition for habeas corpus the Court is to see whether the detention on the date on which the application is made to the Court is legal, if nothing more has intervened between the date of the application and the date of hearing".
In two early decisions of this Court, however, namely, Naranjan Singh v. State of Punjab and Ram Narayan Singh v. State of Delhi, a slightly different view was expressed and that view was reiterated by this Court in B.R. Rao v. State of Orissa, where it was said :
"In habeas corpus the Court is to have regard to the legality or otherwise of the detention at the time of the return and not with reference to the institution of the proceedings".
And yet in another decision of this Court in Talib Husain v. State of Jammu & Kashmir, Mr. Justice Dua, sitting as a Single Judge, presumably in the vacation, observed that :
"in habeas corpus proceedings the Court has to consider the legality of the detention on the date of the hearing".
Of these three views taken by the Court at different times, the second appears to be more in consonance with the law and practise in England and may be taken as having received the largest measure of approval in India, though the third view also cannot be discarded as incorrect, because an inquiry whether the detention is legal or not at the date of hearing of the application for habeas corpus would be quite relevant, for the simple reason that if on that date the detention is legal, the Court cannot order release of the person detained by issuing a writ of habeas corpus.
xx xx xx"
This being the settled position of law, it is immaterial whether or not the period of remand of the petitioner had exceeded 15 days on the date of filing of the writ petition. Now, it is left to this Court to examine, whether on the date of return, which admittedly in this case was 25.06.2015, and on the date of closing of hearing, i.e., 04.12.2015 the period of remand had exceeded 15 days and, if so, whether the petitioner is entitled to get benefit of the same. Since cognizance was taken on 11.12.2014, as mentioned earlier, from 12.01.2015 onwards, on which date the petitioner was next produced, provisions of Section 309(2) would apply. On perusal of lower court order-sheets, this Court finds that on 12.01.2015, which was the immediate next date after cognizance was taken, the petitioner along with other UTPs was produced and remanded to judicial custody till 26.01.2015/ 07.02.2015/26.02.2015. The petitioner along with other UTPs was next produced on 26.02.2015 and on that date remanded to judicial custody till 11.03.2015/25.03.2015/08.04.2015. He was next produced on 08.04.2015 along with other UTPs and remanded to judicial custody till 21.04.2015/05.05.2015/08.05.2015. But, order-sheet dated 08.05.2015 reveals that on that date although other UTPs were produced, the petitioner could not be produced due to his sickness, as reported by the Superintendent, Special Jail, Bhubaneswar, however, the UTPs were remanded to judicial custody till 22.05.2015/05.06.2015/19.06.2015. As would be evident from order dated 19.06.2015, on that date even though other UTPs were produced, the petitioner could not be produced due to his illness, as reported by the Superintendent, Special Jail, Bhubaneswar, however, the UTPs were remanded to judicial custody till 02.07.2015/ 16.07.2015/30.7.2015. The first proviso to Section 309(2), Cr.P.C., which is relevant for this purpose, reads that no Magistrate shall remand an accused person to custody under this Section for a term exceeding fifteen days at a time. This means, term of remand can be extended in a number of spells/slots at a time but each spell/slot shall not exceed 15 days. Keeping this interpretation in mind, if each date of remand, as noted above, is examined, it would be seen on the date of return, i.e., 25.06.2015, the period of remand has not exceeded 15 days, as the learned Magistrate has fixed the next date of production in spells/slots which do not exceed 15 days, if one takes into account the first of the bye dates. In any case, in the present case on the date of final conclusion of hearing, i.e., 04.12.2015 as per the last remand order recorded on 26.11.2015, it is apparent that the period of remand is well within 15 days. Therefore, even if there was infirmity in the earlier detention of the petitioner that cannot invalidate his subsequent detention.
11. In view of the discussions made above as well as a holistic reading of the orders under Annexure-5 series would show that the remand order was passed properly by a Court of competent jurisdiction taking into account the back-ground facts indicated therein. Therefore, the detention of the petitioner by virtue of a valid remand order cannot be said to be wholly illegal. In such circumstances, a writ of habeas corpus is uncalled for.
12. Before parting with the case, this Court feels it proper to mention that excepting the decisions dealt in this judgment, all other decisions cited on behalf of the respective parties are distinguishable either in facts or in law and therefore those decisions have not been taken note of during discussion.
13. The writ petition is accordingly dismissed. LCR be sent back immediately.
