Atanu Ghose Vs. State (Nct of Delhi) - Court Judgment

Excerpt:
criminal procedure code, 1973 - sections 438 and 482--anticipatory bail--criminal complaint--magistrate sought police report under section 156(3)--petitioner already obtained bail order from calcutta high court--bail order was also not compiled with--misuse of process of law--petitioner is not entitled to move delhi courts again under section 438 for similar relief--bail rejected. - - rich kapoor, learned counsel for the state. it was also ordered that if the petitioner failed to surrender within the aforesaid period before the magistrate, it shall be open for the police authorities to arrest him after expiry of 24 hours and deal with him, in accordance with law. 6. learned counsel further argues that perusal of the complaint and other material collected by the investigating agency clearly suggests that the petitioner in conspiracy with his other co-accused had misrepresented and misled the complainant to do what he would not have don e and but for his false statements and misrepresentations, the complainant would not have invested and spent lacs of rupees out of which substantial amount was pocketed by the petitioner and his co-accused. in case he was not satisfied with the orders of the calcutta high court, he ought to have approached the appex court for obtaining further orders. 9. the law is well settled that in a case where the offence is serious, the allegations are grave and the accused may be required for custodial interrogation also, the court must not exercise its discretion in favor of grant of anticipatory bail. vs .anil sharma, 1997crilj4414 ,it was clearly held by the apex court that considerations for bail are different in the matter of anticipatory bail and custodial interrogation is qualitatively more elicitation oriented.orderr.c. chopra, j.1. the petitioner has come to this court under section 438 read with section 482 of the code of criminal procedure for grant of anticipatory bail in case fir no.922/200 registered at p.s. kalkaji under sections 420/406 read with section 120-b of the indian penal code.2. i have heard mr. d.c. mathur, senior advocate on behalf of the petitioner and ms. rich kapoor, learned counsel for the state.3. the facts relevant for disposal of this petition, briefly stated, are that the complainant sashwat sud filed a complaint in the court of metropolitan magistrate, new delhi alleging commission of offences under sections 420/406/120-b ipc by the petitioner atanu ghose and one anido ghosh. the allegations were that the petitioner by making false claims regarding his experience and research in the field of software solutions for oil sector induced the complainant to float a company under the name of m/s. neural magic systems in which the accused petitioner and his wife were also made directors without any investment whatsoever. the petitioner was made director in-charge of the project. he inducted his co-accused anido ghosh as a full time consultant in the company on a remuneration of rs.10 lacs per annum inspire of the fact that he knew that his bio-data was false. the complainant later came to know that the bio-data furnished by anido ghosh was not true and he was not as qualified as he posed to be. the petitioner claiming to the proprietor of one oicl report wanted rs.50 lacs for use of the said project report and received rs.10 lacs out of rs.50 lacs. the petitioner further induced the complainant to undertake a foreign trip with the petitioner for exploring his contacts for promotion of the business of the company on which also the petitioner spent about rs.10 lacs. when no tangible results in the matter of procurement of business were forthcoming, the complainant became suspicious and embarked upon discreet inquiries to allay his doubts and found that anido ghosh was not that qualified as he was represented to be. he also came to know that the representations made by the petitioner in regard to the project and his proprietorship of iocl report were false and fraudulent. m/s. price water house corporation informed the complainant that the petitioner had wrongfully retained copies of some extremely confidential reports and was selling the same to some unsuspecting companies. the complainant prayed the court to get the matter investigated under section 156(3) cr.p.c. upon which learned magistrate forwarded the complaint to the police vide orders dated 20.12.2000.4. learned counsel for the petitioner has strongly objected to the manner in which the complaint was made over by learned metropolitan magistrate to the police without application of mind in regard to the need of sending it to the police for investigations instead of inquiry by the court itself. he relies upon the judgments in madhu bala vs . suresh kumar & others : 1997crilj3757 and arvindbhai ravjibhai patel v. dhirubhai sambhubhai kakadia 1998 (1) crimes 351 to contend that the course adopted by learned magistrate was totally unjust and unwarranted. he also argues that no offence under sections 420/406 read with section 120-b ipc was even prima facie made out on the basis of the allegations in the complaint in as much as it was a purely commercial transaction and if the complainant himself was more than willing to act upon the representations of the petitioner without any cross-checking or verification, he had to blame none, but himself alone. according to him, at the most offences under sections 403 and 417 appear to have been made out. while pressing for grant of anticipatory bail, he relies upon the judgments in habib khan v. the state (nct of delhi) 1996 jcc 500 and gurbaksh singh sibbia and others vs . state of punjab : 1980crilj1125 .5. learned counsel for the state on the other hand contends that before filing the present petition, the petitioner had filed a similar petition under section 438 of cr.p.c. in the high court of calcutta also in which orders were passed on 12.1.2001. she submits that the petitioner had not complied with the said orders and as such, he was not entitled to move a second application before this court for the same relief. she also submits that conduct of the petitioner disentitles him to any relief from this court in as much as not only he cheated the complainant and defrauded him of large sums, but he was also trying to abuse the process of law by not complying with the orders passed by calcutta high court. she submits that on 28.12.2000, a notice under section 160 cr.p.c. was personally served upon the petitioner by the investigating officer directing him to appear before him on 29.12.200. on the next date, the petitioner sent a letter to s.h.o., p.s. kalkaji through his counsel admitting the service of notice under section 160 cr.p.c., but pleading that he had to leave the town suddenly for about a week. thereafter he straightaway went to calcutta and by mentioning his residential address of calcutta, he moved an application for anticipatory bail in the high court of calcutta praying for his release on bail under section 438 of cr.p.c. she submits that in the said application the pleas on the merits of the case were raised and the prayer was not merely to give protection for moving the courts at delhi for appropriate relief, but was for release on bail under section 438 of cr.p.c. learned counsel for the state submits that hon'ble judges of calcutta high court vide their orders dated 12.1.2001 passed orders that in case the petitioner was arrested by the police in the aforesaid case, he shall be released on bail by the arresting officer for 24 hours only and during that period, the petitioner shall surrender before the concerned magistrate and pray for bail and the magistrate shall deal with him in accordance with section 81 of cr.p.c. and other relevant provisions of law. it was also ordered that if the petitioner failed to surrender within the aforesaid period before the magistrate, it shall be open for the police authorities to arrest him after expiry of 24 hours and deal with him, in accordance with law. it is argued that since the petitioner had submitted to the jurisdiction of calcutta high court and obtained orders, he was legally bound to comply with those orders. finding that those orders were not suitable to him, he just ignored those orders and came before delhi courts again for grant of anticipatory bail under section 438 cr.p.c. which according to learned counsel, was an utter abuse of the process of law and requires to be discouraged.6. learned counsel further argues that perusal of the complaint and other material collected by the investigating agency clearly suggests that the petitioner in conspiracy with his other co-accused had misrepresented and misled the complainant to do what he would not have don e and but for his false statements and misrepresentations, the complainant would not have invested and spent lacs of rupees out of which substantial amount was pocketed by the petitioner and his co-accused. she also submits that the complainant, who unsuspectingly believed the petitioner had been deceived by the petitioner and his co-accused of a very large amount and as such, the petitioner's custodial interrogation may also be required.7. the submissions made by learned counsel for the petitioner assailing the orders of learned magistrate entrusting the investigations to the police instead of holding an inquiry himself under the provisions of section 202 cr.p.c. may be subject matter of scrutiny in appropriate proceedings, but in this petition under section 438 cr.p.c., the court is mainly concerned with the question as to whether the petitioner deserves to be enlarged on bail or not before his arrest in the aforesaid fir. this court is of the considered view that once the petitioner had moved the high court of calcutta under section 438 of cr.p.c. and had obtained orders, he was under a legal duty to abide by those orders. he had no right to ignore those orders and move delhi courts again under section 438 cr.p.c. praying for same relief on the same grounds. the prayer of the petitioner before calcutta high court was not for any interim protection for moving the courts at delhi, but it was for grant of anticipatory bail under section 438 of the code in the case registered against him at p.s. kalkaji. the high court disposed of his application by directing the arresting officer to release the petitioner for 24 hours on bail after his arrest to enable him to appear before the concerned magistrate, who had to deal with him, in accordance with law. thus after the said orders of the calcutta high court, the petitioner was not entitled to move delhi courts again under section 438 of the code for a similar relief. in case he was not satisfied with the orders of the calcutta high court, he ought to have approached the appex court for obtaining further orders. the effort of the petitioner to circumvent the orders of calcutta high court must be spurned for the reason that none should be allowed to manipulate the process of law. thereforee, on this ground itself, the present petitioner disentitles himself to the relief of anticipatory bail from this court.8. the facts, as disclosed in the fir and the material collected by the investigating agency prima facie show that the petitioner had dishonestly induced the complainant to part with large sums of money, which he would not have done, but for the misrepresentations made by the petitioner. the complainant suffered loss of huge amounts whereas the petitioner and his co-accused gained substantial amount.9. the law is well settled that in a case where the offence is serious, the allegations are grave and the accused may be required for custodial interrogation also, the court must not exercise its discretion in favor of grant of anticipatory bail. in state rep. by c.b.i. vs . anil sharma, : 1997crilj4414 , it was clearly held by the apex court that considerations for bail are different in the matter of anticipatory bail and custodial interrogation is qualitatively more elicitation oriented.10. thus this court is of the considered view that the petition filed by the petitioner is without merit and the petitioner does not deserve to be released on anticipatory bail, as prayed. the petition, thereforee, stands dismissed.11. the interim protection granted to the petitioner vide orders dated 14.02.2001 stands withdrawn. the orders dated 12.01.2001 passed by calcutta high court be complied with.

Judgment:
ORDER

R.C. Chopra, J.

1. The petitioner has come to this Court under Section 438 read with Section 482 of the Code of Criminal Procedure for grant of anticipatory bail in case FIR No.922/200 registered at P.S. Kalkaji under Sections 420/406 read with Section 120-B of the Indian Penal Code.

2. I have heard Mr. D.C. Mathur, Senior Advocate on behalf of the petitioner and Ms. Rich Kapoor, learned counsel for the state.

3. The facts relevant for disposal of this petition, briefly stated, are that the complainant Sashwat Sud filed a complaint in the Court of Metropolitan Magistrate, New Delhi alleging commission of offences under Sections 420/406/120-B IPC by the petitioner Atanu Ghose and one Anido Ghosh. The allegations were that the petitioner by making false claims regarding his experience and research in the field of software solutions for oil sector induced the complainant to float a Company under the name of M/s. Neural Magic Systems in which the accused petitioner and his wife were also made directors without any investment whatsoever. The petitioner was made Director In-Charge of the project. He inducted his co-accused Anido Ghosh as a full time consultant in the Company on a remuneration of Rs.10 lacs per annum inspire of the fact that he knew that his bio-data was false. The complainant later came to know that the bio-data furnished by Anido Ghosh was not true and he was not as qualified as he posed to be. The petitioner claiming to the Proprietor of one OICL report wanted Rs.50 lacs for use of the said project report and received Rs.10 lacs out of Rs.50 lacs. The petitioner further induced the complainant to undertake a foreign trip with the petitioner for exploring his contacts for promotion of the business of the Company on which also the petitioner spent about Rs.10 lacs. When no tangible results in the matter of procurement of business were forthcoming, the complainant became suspicious and embarked upon discreet inquiries to allay his doubts and found that Anido Ghosh was not that qualified as he was represented to be. He also came to know that the representations made by the petitioner in regard to the project and his proprietorship of IOCL report were false and fraudulent. M/s. Price Water House Corporation informed the complainant that the petitioner had wrongfully retained copies of some extremely confidential reports and was selling the same to some unsuspecting Companies. The complainant prayed the Court to get the matter investigated under Section 156(3) Cr.P.C. upon which learned Magistrate forwarded the complaint to the police vide orders dated 20.12.2000.

4. Learned counsel for the petitioner has strongly objected to the manner in which the complaint was made over by learned Metropolitan Magistrate to the police without application of mind in regard to the need of sending it to the police for investigations instead of inquiry by the Court itself. He relies upon the judgments in Madhu Bala Vs . Suresh Kumar & Others : 1997CriLJ3757 and Arvindbhai Ravjibhai Patel v. Dhirubhai Sambhubhai Kakadia 1998 (1) Crimes 351 to contend that the course adopted by learned Magistrate was totally unjust and unwarranted. He also argues that no offence under Sections 420/406 read with Section 120-B IPC was even prima facie made out on the basis of the allegations in the complaint in as much as it was a purely commercial transaction and if the complainant himself was more than willing to act upon the representations of the petitioner without any cross-checking or verification, he had to blame none, but himself alone. According to him, at the most offences under Sections 403 and 417 appear to have been made out. While pressing for grant of anticipatory bail, he relies upon the judgments in Habib Khan v. The State (NCT of Delhi) 1996 JCC 500 and Gurbaksh Singh Sibbia and Others Vs . State of Punjab : 1980CriLJ1125 .

5. Learned counsel for the State on the Other hand contends that before filing the present petition, the petitioner had filed a similar petition under Section 438 of Cr.P.C. in the High Court of Calcutta also in which orders were passed on 12.1.2001. She submits that the petitioner had not complied with the said orders and as such, he was not entitled to move a second application before this Court for the same relief. She also submits that conduct of the petitioner disentitles him to any relief from this Court in as much as not only he cheated the complainant and defrauded him of large sums, but he was also trying to abuse the process of law by not complying with the orders passed by Calcutta High Court. She submits that on 28.12.2000, a notice under Section 160 Cr.P.C. was personally served upon the petitioner by the Investigating Officer directing him to appear before him on 29.12.200. On the next date, the petitioner sent a letter to S.H.O., P.S. Kalkaji through his counsel admitting the service of notice under Section 160 Cr.P.C., but pleading that he had to leave the town suddenly for about a week. Thereafter he straightaway went to Calcutta and by mentioning his residential address of Calcutta, he moved an application for anticipatory bail in the High Court of Calcutta praying for his release on bail under Section 438 of Cr.P.C. She submits that in the said application the pleas on the merits of the case were raised and the prayer was not merely to give protection for moving the Courts at Delhi for appropriate relief, but was for release on bail under Section 438 of Cr.P.C. Learned counsel for the State submits that Hon'ble Judges of Calcutta High Court vide their orders dated 12.1.2001 passed orders that in case the petitioner was arrested by the police in the aforesaid case, he shall be released on bail by the Arresting Officer for 24 hours only and during that period, the petitioner shall surrender before the concerned Magistrate and pray for bail and the Magistrate shall deal with him in accordance with Section 81 of Cr.P.C. and other relevant provisions of law. It was also ordered that if the petitioner failed to surrender within the aforesaid period before the Magistrate, it shall be open for the police authorities to arrest him after expiry of 24 hours and deal with him, in accordance with law. It is argued that since the petitioner had submitted to the jurisdiction of Calcutta High Court and obtained orders, he was legally bound to comply with those orders. Finding that those orders were not suitable to him, he just ignored those orders and came before Delhi Courts again for grant of anticipatory bail under Section 438 Cr.P.C. which according to learned counsel, was an utter abuse of the process of law and requires to be discouraged.

6. Learned counsel further argues that perusal of the complaint and other material collected by the Investigating Agency clearly suggests that the petitioner in conspiracy with his other co-accused had misrepresented and misled the complainant to do what he would not have don e and but for his false statements and misrepresentations, the complainant would not have invested and spent lacs of rupees out of which substantial amount was pocketed by the petitioner and his co-accused. She also submits that the complainant, who unsuspectingly believed the petitioner had been deceived by the petitioner and his co-accused of a very large amount and as such, the petitioner's custodial interrogation may also be required.

7. The submissions made by learned counsel for the petitioner assailing the orders of learned Magistrate entrusting the investigations to the police instead of holding an inquiry himself under the provisions of Section 202 Cr.P.C. may be subject matter of scrutiny in appropriate proceedings, but in this petition under Section 438 Cr.P.C., the Court is mainly concerned with the question as to whether the petitioner deserves to be enlarged on bail or not before his arrest in the aforesaid FIR. This Court is of the considered view that once the petitioner had moved the High Court of Calcutta under Section 438 of Cr.P.C. and had obtained orders, he was under a legal duty to abide by those orders. He had no right to ignore those orders and move Delhi Courts again under Section 438 Cr.P.C. praying for same relief on the same grounds. The prayer of the petitioner before Calcutta High Court was not for any interim protection for moving the Courts at Delhi, but it was for grant of anticipatory bail under Section 438 of the Code in the case registered against him at P.S. Kalkaji. The High Court disposed of his application by directing the Arresting Officer to release the petitioner for 24 hours on bail after his arrest to enable him to appear before the concerned Magistrate, who had to deal with him, in accordance with law. Thus after the said orders of the Calcutta High Court, the petitioner was not entitled to move Delhi Courts again under Section 438 of the Code for a similar relief. In case he was not satisfied with the orders of the Calcutta High Court, he ought to have approached the Appex Court for obtaining further orders. The effort of the petitioner to circumvent the orders of Calcutta High Court must be spurned for the reason that none should be allowed to manipulate the process of law. thereforee, on this ground itself, the present petitioner disentitles himself to the relief of anticipatory bail from this Court.

8. The facts, as disclosed in the FIR and the material collected by the investigating agency prima facie show that the petitioner had dishonestly induced the complainant to part with large sums of money, which he would not have done, but for the misrepresentations made by the petitioner. The complainant suffered loss of huge amounts whereas the petitioner and his co-accused gained substantial amount.

9. The law is well settled that in a case where the offence is serious, the allegations are grave and the accused may be required for custodial interrogation also, the Court must not exercise its discretion in favor of grant of anticipatory bail. In State Rep. by C.B.I. Vs . Anil Sharma, : 1997CriLJ4414 , it was clearly held by the Apex Court that considerations for bail are different in the matter of anticipatory bail and custodial interrogation is qualitatively more elicitation oriented.

10. Thus this Court is of the considered view that the petition filed by the petitioner is without merit and the petitioner does not deserve to be released on anticipatory bail, as prayed. The petition, thereforee, stands dismissed.

11. The interim protection granted to the petitioner vide orders dated 14.02.2001 stands withdrawn. The orders dated 12.01.2001 passed by Calcutta High Court be complied with.