CENTRAL BUREAU OF INVESTIGATION versus VIKAS MISHRA @ VIKASH MISHRA on 10 April 2023

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 30.09.2022 passed by the High Court of Calcutta in AB

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ACriminal Miscellaneous Application No. 1638/2022, by which the DivisionBench of the High Court has directed to release the respondent – accusedon statutory/default bail under Section 167(2) of the Code of CriminalProcedure (Cr.P.C.), the Central Bureau of Investigation (CBI) haspreferred the present appeal.

B2. The facts leading to the present appeal in nutshell are as under:

That on 27.11.2020, an FIR/complaint came to be registered bythe CBI (ACB, Kolkata) against inter alia the officials of Eastern CoalfieldLimited, CISF, Railways and others for the commission of offences undersections 120B/409 of the IPC and the relevant provisions of the PreventionCof Corruption Act. That on 16.04.2021, the respondent – accused VikasMishra came to be arrested by the CBI and was remanded to the CBIcustody for a period of seven days i.e., till 22.04.2021. However, duringthe said period of remand to CBI custody, the respondent – accusedVikas Mishra was admitted in the hospital and thus could not beinterrogated by the CBI despite police custody remand.D

2.1 That on 21.04.2021, the respondent-accused was enlarged oninterim bail by the learned Special Court which came to be extendedfrom time to time. On 08.12.2021, the learned Special Court cancelledthe interim bail of the respondent-accused on the ground that he did notappear before the Special Court despite specific directions and also didEnot cooperate with the CBI investigation. That on 09.12.2021 and pursuantto the interim bail being cancelled, the respondent-accused came to bearrested again on 11.12.2021 and was remanded to judicial custody. Thatagain from 12.12.2021 to 08.04.2022, while in judicial custody, the accusedgot admitted to the hospital and then again from 07.05.2022 to 08.09.2022.

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2.2 That the accused submitted an application for default bail underSection 167(2) Cr.P.C. on the ground of non-filing of the charge sheet/report within the prescribed period of 90 days. The learned Special Judgerejected the said application inter alia on the ground that the accusedwas not remanded to custody under Section 167(2) Cr.P.C. afterGcancellation of his bail on the grounds that the accused was grantedinterim bail under the provisions of Chapter XXXIII Cr.P.C. and hisdetention pursuant to cancellation of bail was on the strength of warrantsissued by the Court. That on 19.07.2022, the CBI filed a charge sheetagainst the accused and the cognizance was taken by the learned SpecialCourt on the same date.H

2.3 Against the judgment and order passed by the learned SpecialJudge rejecting the application submitted by the accused – Vikas Mishrafor statutory/default bail under Section 167(2) Cr.P.C., the respondent-accused preferred the present application before the High Court. By theimpugned judgment and order, the High Court has allowed the saidapplication and has directed to release the respondent on statutory/defaultbail under Section 167(2) Cr.P.C. as even within 90 days from the dateof re-arrest, i.e., from 11.12.2021, the charge sheet was not filed andwhich came to be filed only on 19.07.2022. Against the impugnedjudgment and order passed by the High Court directing to release therespondent-accused Vikas Mishra on statutory/default bail, the CBI haspreferred the present appeal.

3. While issuing notice on 27.02.2023, this Court passed thefollowing order:

“Issue notice to consider the prayer of the Investigating Agencyto have the custodial interrogation of the accused, making itreturnable on 13.03.2023.

Shri Rajat Sehgal, learned counsel accepts notice on behalf of therespondent, who is on caveat.

To be notified within first ten items.”

4. Ms. Aishwarya Bhati, learned ASG appearing on behalf of theCBI has vehemently submitted that as such the CBI got the police custodyremand for a period of seven days on 16.04.2021 till 22.04.2021. It issubmitted that however the accused got himself first admitted to hospitaland thereafter got interim bail which came to be subsequently cancelledon 08.12.2021, the CBI could not exercise the police custody remandwhich as such was allowed by the learned Special Judge on 16.04.2021.

4.1 It is submitted that as such the order granting seven dayspolice custody remand attained finality and therefore the CBI should begiven the police custody remand of the accused for the remainder periodof seven days.

4.2 It is submitted that as such all throughout the respondent-accused managed to get himself hospitalised on one ground or the otherand therefore as such successfully frustrated the order of police remandallowed by the learned Special Judge. It is submitted that nobody can bepermitted to frustrate the court’s process.

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A4.3 Making above submissions, it is prayed to grant the policecustody remand of the respondent-accused for the remainder period ofseven days which the CBI could not exercise because of the respondentgot himself hospitalised and was released on interim bail.

5. The present application and the prayer of the CBI for furtherBpolice custody remand is vehemently opposed by Shri Neeraj KishanKaul, learned Senior Counsel appearing on behalf of the respondent –accused.

5.1 Relying upon the decisions of this Court in the case of CentralBureau of Investigation v. Anupam J. Kulkarni, reported in (1992)C3 SCC 141 and the subsequent decision in the case of Budh Singh v.State of Punjab, reported in (2000) 9 SCC 266, it is vehementlysubmitted by Shri Neeraj Kishan Kaul, learned senior counsel appearingon behalf of the accused that as such no police custody can be granted/allowed beyond the first 15 days from the date of arrest. It is submittedthat therefore now the police custody which shall be beyond the periodDof 15 days from the date of arrest is not permissible.

5.2 It is further submitted that even otherwise in the present casethe respondent-accused was hospitalised from time to time due to hisgrave and fragile medical condition. That on 18.04.2021, the health ofthe respondent heavily deteriorated due to which he had to be admittedEin the hospital by the appellant agency itself. It is submitted that thereafteron 20.04.2021 he was transferred to another hospital – a governmenthospital for better treatment and medical facilities. It is submitted thattherefore there is no substance in the submission on behalf of theinvestigating agency that on 18.04.2021 the accused got himself admittedFto the hospital to evade his custody.

5.3 It is further submitted that even otherwise between 08.04.2022to 18.04.2022 when the respondent was remanded to police custody inanother case, during that time, he was extensively interrogated in thepresent RC as well. It is submitted that even while on interim bail theGrespondent accused was interrogated. It is submitted that therefore theprayer on behalf of the CBI made now to have the police custody of therespondent-accused may not be granted.

5.4 Shri Neeraj Kishan Kaul, learned senior counsel appearing onbehalf of the accused has drawn our attention to the pendency of theSpecial Leave Petition(Criminal) Nos. 1620-1621/2021 filed by the co-H

accused in which the investigation by the CBI itself is under challengeand this Court passed an interim order that no coercive steps be takenagainst the petitioner of that special leave petition.

5.5 Making above submissions, it is prayed to dismiss the presentappeal.

6. We have heard learned counsel for the respective parties atlength.

While considering the prayer of the CBI for police custody forthe remainder period of seven days, it is required to be noted that assuch the learned Special Judge granted seven days police custody of therespondent-accused on 16.04.2021. The order granting seven days policecustody as such had attained finality. However, it so happened that beforethe seven days police custody is over and before the CBI exercises thepower of interrogation for full seven days which as per the order passedby the learned Special Judge was available to the CBI, the respondent-accused got himself hospitalised on 18.04.2021. On 21.04.2021, thelearned Special Judge granted interim bail to the accused. As per thesettled position of law therefore once on bail/interim bail, during thatperiod there cannot be any police custody. Therefore, the CBI could notinterrogate the respondent-accused for full seven days under the policecustody remand, which otherwise the CBI was entitled to. That thereafter,the accused remained in the hospital from time to time during the interimbail which also came to be extended from time to time. That thereafter,by order dated 08.12.2021, the learned Special Judge cancelled the interimbail by observing that the respondent accused has misused the interimbail and has not cooperated with the CBI in investigation and that therewas no valid reason for his hospitalisation. The learned Special Judgealso observed that in view of the non-cooperation by the accused, theinterrogation of the accused under judicial custody/police custody hasnecessitated. Some of the observations made by the learned SpecialJudge made in the order dated 08.12.2021 cancelling the interim bail arerelevant, which are as under:

“Heard both sides, perused the materials in the CD and in thecase record and considered.

Following propositions were submitted and seems to beadmitted that neither the accused person has attempted to tamperany evidence nor he is likely to flee from justice. The only aspect A

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on which the present prayer under adjudication seems to be bankedupon is that the accused person willfully halted the progress ofthe investigation by not cooperating the investigating agency duringhis attendances before them. For that I am here to decipher howgenuine the allegation is and as to whether such alleged non-cooperation on the part of this accused person is a sufficient groundto curb his bailed freedom and commit him back to custodyinvoking section 437(5) Cr. P.C. I have carefully gone through thetranscribed conversations on different dates between the 10 andthis accused person while on bail and the 10. The answers givento questions put to him are by no means in the direction ofcorroborating the contents of the documentary evidence collectedby the 10 during the investigation. The statements of the witnessesrecorded u/s 161 and 164 Cr. P.C. and the documentary evidencelike account statements etc. collected disclose direct involvementof this accused person in transmitting huge sums, to yet unknownor unidentifiable entities. This money trail also bears a directlinkage to the other FIR named accused persons, whether or notpublic servants, as it transpires from the CD. Any man of commonprudence would understand that unless these details are elicitedthe investigation would be badly hampered and the total truth willnever be unearthed. In such circumstances I feel that judicialdetention and custodial interrogation of the accused person haveto be resorted to. I also am convinced to say that this non-cooperation is consciously active and pre-designed and this issufficient to presume willful misuse of liberty of bail on the part ofthe accused person which he obtained exclusively on medicalground. In my appreciation allowing furtherance of this libertywould certainly defeat the cause of public justice. The nature andseriousness of the offence, the character of evidence collectedbefore and after the interim bail was granted as against this accusedperson, the present circumstances and shown gesture of designedreluctance of the accused person in assisting the investigation toprogress, and the larger interest of the public and the nation - allat a time, impel me to jump to the judicial inference that the accusedperson should no more be allowed to enjoy the liberty of the interimbail granted to him on 21.04.2021 and which has been extendedfrom time to time till date. The precedents relied upon by the Ld.Advocates for the accused person are all dissimilar to the factual matrix of the present case and hence require no separatementioning. So far as the present health condition of the accusedperson is concerned from the documents supplied on behalf ofthe accused person, it is definitely evident that his health is incondition than what he was in at the time of obtaining the InterimBail, of course with advice by the doctors to keep away fromphysical and mental stress. But only that should not save himfrom the rigours of incarceration which he was supposed to be in,had the illness of that not there at the time of getting magnitudebeen not person the interim bail. There is nothing in the medicaldocuments to assume that the accused is not fit enough to move,think or talk properly, as was urged by the Ld. Advocate for theaccused person. In the contrary it is found that the accused personis suffering from cirrhosis of liver since before this case wasinitiated and there had been ups and downs in his health condition.For that this court cannot let the truth submerge in the plea of hischronic ailments.

Coming to the medical reports submitted today it is found thattoday at 12.10 am he shifted himself to Apollo Hospital where hewas examined and was readily admitted in some medicallyunspecified ward (Deluxe) under treatment of a specialistpulmonologist. Notable that the documents produced show thatthe emergency admission advice form has been struck down byhand making it a direct admission advice form and the bed numberthere is also illegible due to repeated overwriting. The admissionform submitted shows that expected length of stay of the patientat the hospital is nil. Even if it is accepted that the accused personis admitted in hospital for a suspected pulmonary tract infection,that does not take away the adverse inferences already drawn bythis court hereinabove. For the sake of precise investigationcoercive participation of the accused person by way of judicialdetention now appears to be imminent and indispensable.”

7. In light of the aforesaid facts and circumstances and theobservations made by the learned Special Judge while cancelling theinterim bail, the decision of this Court in the case of Anupam J. Kulkarni(supra) is required to be considered.

7.1 It is true that in the case of Anupam J. Kulkarni (supra),this Court observed that there cannot be any police custody beyond 15

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Adays from the date of arrest. In our opinion, the view taken by this Courtin the case of Anupam J. Kulkarni (supra) requires re-consideration.When we put a very pertinent question to Shri Neeraj Kishan Kaul,learned senior counsel appearing on behalf of the respondent-accusedthat in a given case it may happen that the learned trial/Special CourtBrefuses to grant the police custody erroneously which as such was prayedwithin 15 days and/or immediately on the date of arrest and thereafterthe order passed by the trial/Special Court is challenged by theinvestigating agency before the higher Court, namely, Sessions Court orthe High Court and the higher Court reverses the decision of the learnedMagistrate refusing to grant the police custody and by that time theCperiod of 15 days is over, what would be position? The learned seniorcounsel is not in a position to answer the court query.

8. Be that as it may, the facts in the present case are very glaring.Despite the fact that on 16.04.2021, the learned Special Judge allowedpolice custody of the respondent-accused for seven days i.e., up toD22.04.2021, the respondent-accused got himself admitted in the hospitalduring the period of police custody, i.e., on 18.04.2021 and obtainedinterim bail on 21.04.2021 which came to be extended till 08.12.2021when his interim bail came to be cancelled by the learned Special Judgeby observing that the accused has misused the liberty shown to him andEduring the interim bail he has not cooperated with the investigating agency.At the cost of repetition, it is observed that initial order of grant of sevendays police custody attained finality. However, due to the aforesaid reasonsof having got the accused himself hospitalised on 18.04.2021 andthereafter obtaining the interim bail on 21.04.2021, the CBI could notinterrogate the accused in the police custody though having a valid orderFin its favour. Thus, the respondent-accused has successfully avoided thefull operation of the order of police custody granted by the learned SpecialJudge. No accused can be permitted to play with the investigation and/or the court’s process. No accused can be permitted to frustrate thejudicial process by his conduct. It cannot be disputed that the right ofGcustodial interrogation/investigation is also a very important right in favourof the investigating agency to unearth the truth, which the accused haspurposely and successfully tried to frustrate. Therefore, by not permittingthe CBI to have the police custody interrogation for the remainder periodof seven days, it will be giving a premium to an accused who has beenHsuccessful in frustrating the judicial process.

9. Now so far as the submission on behalf of the accused aboutthe pendency of Special Leave Petition (Criminal) Nos. 1620-1621/2021by the co-accused before this Court and the interim order that “nocoercive steps be taken against the petitioner therein” is concerned, it isrequired to be noted that the pendency of the special leave petitions atthe behest of the co-accused has nothing to do with the presentproceedings. It is required to be noted that the accused in the presentcase - Vikas Mishra in fact filed a similar special leave petition, however,this Court declined to grant the permission to the respondent-accused tofile the special leave petition by reserving liberty in his favour to pursuethe remedies which were available in law.

10. In view of the above and for the reasons stated above, thepresent appeal succeeds. The appellant-CBI is permitted to have thepolice custody remand of the respondent for a period of four days (takinginto consideration that pursuant to order dated 16.04.2021 passed by thelearned Special Judge the police custody remand of seven days of therespondent-accused was granted, however for the reasons stated above,the CBI could interrogate the respondent-accused only for a period oftwo and half days and therefore could not exercise the right ofinterrogation for the full period of seven days of police custody remand).

11. The instant appeal is accordingly allowed to the aforesaidextent.

Ankit Gyan

Appeal allowed.

(Assisted by : Abhishek Agnihotri and Mahendra Yadav, LCRAs)

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