TMI Blog1992 (3) TMI 366X X X X Extracts X X X X X X X X Extracts X X X X ..... which they purport to be made pending the hearing and disposal of the petition; and (d) pass such other order/orders as this Hon'ble Court may deem fit in the circumstances of the case to give complete relief to the petitioner. 2. Briefly stated the facts pleaded by the petitioner in the petition are as under :- The petitioner was issued an Indian Passport on the basis of which he went abroad on 27-10-1988, and since then had been residing outside the country. Presently, he is residing at Dubai. 3. On 22-1-1990, case R.C. No. 1(A)/90/ACU-IV was registered by C.B.I. against many persons including Shri Martin Ardbo, former President of M/s. A. B. Bofors, Sweden (P) Ltd., and Washeshar Nath Chadha alias Win Chadha, for the offences under S. 120, IPC read with Sections 161, 161, 163, 164 and 165A, IPC read with Sections 5, 5(1)(c), 5 of the Prevention of Corruption Act, 1947, read with Sections 409, 420, 468 and 471, IPC, and also for the substantive offences, and the investigation of the case was entrusted to D.S.P., Shri Umesh. 4. During the investigation of this case, a notice under S. 160, Cr.P.C. was issued by the Investigating Officer on 30-1-1990, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the basis of which order dated 10-4-1990 was issued. He preferred an appeal against the order of revocation on 26-4-1990 before the Chief Passport Officer, Ministry of External Affairs, New Delhi, and the appeal is still pending. 6. It has further been pleaded by the petitioner that enquiries made by him, revealed that notice was issued for his appearance by the Investigating Officer at Delhi address, knowing it fully well that he was residing at Dubai, and without making any sincere efforts to get the same served, warrants of arrest were obtained on his Delhi address again giving by wrong information, since the petitioner was not residing at Delhi. It has further been pleaded that an application for inspection of the record was moved before the Special Judge by Shri R. P. Dave, and Shri Suhail Dutt. Advocates, on the basis of a vakalatnama, claimed to have been signed by the petitioner. The factum of vakalatnama being signed by the petitioner, was contested by CBI, and during the proceedings, another power of attorney duly signed by the petitioner was filed in court by his counsel Shri Ashok Grover, who had admitted before the Special Judge that the earlier Power of Attor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r is he making any request to the Court to interfere in the investigation of the case. He has also submitted that all that has been prayed by the petitioner in this petition, is that the Investigating Officer cannot get the assistance of the Court in the investigation of the case by giving wrong facts or suppressing the facts, and it is only that part of the order which is being challenged by the petitioner in this petition. I have given my due consideration to this submission, and have also carefully gone through this judgment. 10. Case of Prashant Gaur v. State of U.P. 1988 All WC 828 was decided by a Full Bench of the Allahabad High Court, in which three questions were answered. The first question was : Whether under S. 482, Cr.P.C. the High Court has inherent powers to interfere with the investigation by the police ? which was answered as, Investigation into an offence is a statutory function of the police and the superintendence thereof is vested in the State Government. It is only in the rarest of rare cases, and that too, when it is found by the Court that the F.I.R. and the investigation over a reasonable length of time, do not disclose the commission of a cognizable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disclosed in the first information report or when the investigation is mala fide as the inherent powers of the Court to prevent the abuse of the process of the Court or to otherwise secure the ends of justice come into play only after the charge sheet has been filed in Court and not during investigation which may even be illegal and unauthorised. If the High Court is convinced that the power of arrest by a police officer will be exercised wrongly or mala fide in violation of Section 41(1)(a), Cr.P.C. the High Court can always issue a writ of mandamus under Art. 226 of the Constitution restraining the police officer from misusing his legal power. 14. A reading of the aforesaid paragraph make it abundantly clear that High Court in exercise of the powers under section 482, Cr.P.C., has no power to, interfere with the investigation of a case even if the police officer is making efforts to arrest a person in violation of Section 41, Cr.P.C. It is, thus, clear that so long as the Investigating Officer is making investigation independently without the assistance of the Court, it is not within the power of the High Court in exercise of the powers under section 482, Cr.P.C. to interfe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person under the age of fifteen years or woman shall be required to attend at any place other than the place in which such male person or woman resides. (2) The State Government may, by rules made in this behalf, provide for the payment by the police officer of the reasonable expenses of every person, attending under sub-section (1) at any place other than his residence. 17. A bare reading of the above section makes it abundantly clear that a Police Officer is empowered to direct any person to be present before him so as to be available for interrogation who appears to be acquainted with the facts and circumstances of the case provided that the said person is available within the limits of his own or any adjoining station. The case of the petitioner has been that he was residing in Dubai since 27th October, 1988 and so it cannot be said that he was residing within the jurisdiction of the Investigating Officer. In these circumstances, it appears that the Investigating Officer could not avail of the benefit of this Section. 18. It may also be noted that learned counsel for the petitioner has submitted that similar notices were issued to Sh. G. P. Hinduja, another p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the Investigating Agency to the offer made by the learned counsel for the petitioner for being available for interrogation at Dubai. After getting instructions, learned Additional Solicitor General submitted that the petitioner could be interrogated at London like the interrogation of G. P. Hinduja but not at Dubai and this counter offer was not acceptable to the petitioner as submitted by learned counsel for the petitioner. 21. The short question now thus for consideration is as to whether the Section 73, Cr.P.C. is available to the Investigating Officer to obtain warrants of arrest against the petitioner. Section 73, Cr.P.C. reads. Warrant may be directed to any person. - (1) The Chief Judicial Magistrate or a Magistrate of the first class may direct a warrant to any person within his local jurisdiction for the arrest of any escaped convict, the proclaimed offender or of any person who is accused of a non-bailable offence and is evading arrest. (2) Such persons shall acknowledge in writing the receipt of the warrant, and shall execute it if the person for whose arrest it was issued, is in, or enters on, any land or other property under his charge. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esh proclamation under section 7 of the Act read with Section 82(1) of the Cr.P.C. 23. Under Section 3 of the COFEPOSA ACT the detention order could be passed even against a foreigner so as to prevent him from the activities of smuggling as mentioned in this Section itself. Section 6 of this Act provides that No detention order shall be invalid or inoperative merely by reason that the person to be detained there under is outside the limits of the territorial jurisdiction of the Government or the officer making the order of detention, or that the place of detention of such person is outside the said limits. Under Section 7 of the Act, Appropriate Government having reason to believe that a person in respect of whom a detention order has been made has absconded or is concealing himself so that he order cannot be executed could make a report in writing of the fact to a Metropolitan Magistrate or a Magistrate of the first class having the jurisdiction in the place where the said person ordinarily resides and thereupon the provisions of Sections 82, 83, 84 and 85 of the Code of Criminal Procedure, 1973 would apply in respect of the said person and his property as if the order direct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a person could abscond even by hiding at the place of his residence or away from it and a person having left the country without the knowledge of any action to be taken against him and continue to remain out side the country with a view to avoid the said detention would be deemed to have absconded. However, can it be said that the facts of Full Bench case are similar to the facts of the instant case and the answer is certainly in the negative. In the instant case the petitioner is not required by the police for being arrested as an accused rather his presence is required only to join him in the interrogation of the case. There are no valid warrant of arrest against him nor could such warrant be issued by Special Judge to direct the petitioner to be arrested and produce in Court only to make him available to the Investigating Officer for examination as a person who could throw some light on the facts of the case under investigation. There can possibly be no dispute that Courts have no jurisdiction to interfere in the investigation of a case even if the Investigating Officer is collecting evidence by illegal means. However, the moment assistance of a Court is taken by the Investigati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly with a collateral purpose to get the passport of the petitioner revoked. I am, afraid, it is not open to this Court to visualize the hidden purpose but the fact remains that these warrants could not be issued being not warranted by the fact of the case. It has, however, been rightly pointed out by learned counsel for the petitioner that notice dated 18-3-1990 was issued to the petitioner by Consulate General of India. Dubai to the effect that they had been informed by the CBI that CBI case was pending against him for trial in the Court of Shri P. K. Jain, Special Judge, Delhi in which non-bailable warrants had been issued for his arrest and it was no this account that notice was given to him to explain why his passport be not revoked under section 10(3)(e) and 10(3)(h) of the Passport Act. He has submitted that it was factually wrong information since no such challan has yet been filed and so it cannot be said that any case was pending trial against him in the said Court. The said information could possibly be given to the Consulate General of India by the Investigation Agency and in any case not by the petitioner himself. It is not disputed from the side of the respondent CBI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed by him to the Ministry of External Affairs. Notice of this application was given to the counsel for W. N. Chandha and it is only thereafter that it was admitted by the counsel that the vakalatnama did not bear the signatures of W. N. Chadha and rather it was signed by his son. It was only thereafter that a fresh power of attorney was filed purporting to have been sent to the counsel by W. N. Chadha from Dubai and it was produced in Court by Ashok Grover, Advocate. It was in these peculiar circumstances that the learned Special Judge observed that vakalatnama may not be legally required to be attested by a Notary or Indian Consulate abroad but keeping in view all the circumstances, it was directed that such an attested power of attorney should be filed. I have gone through the order carefully and am of the view that there is nothing wrong with regard to the exercise of discretion by the learned Special Judge keeping in view of the circumstances in which the two different power of attorney were filed. This order does not call for any interference. 30. The question as to which record can be inspected by the petitioner will necessarily have to be decided by the Special Judge a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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