DUKHISHYAM BENUPANI, ASSTT. DIRECTOR, ENFORCEMENT DIRECTORATE (FERA)versusARUN KUMAR BAJORIA

A                  DUKHISHYAM BENUPANI, ASSTT.
             DIRECTOR, ENFORCEMENT DIRECTORATE (FERA)
                                v.
                        ARUN KUMAR BAJORIA

                              NOVEMBER 28, 1997
B
                 [M.K. MUKHERJEE AND K.T. THOMAS, JJ.]


          Criminal Procedure Code, 1973-Section 438-Anticipatory Bai/-
    Grant of-Consideration for Court-FERA violations-Order injuncting
C   Directorate from arresting respondent-Time and place for carrying out
    investigations also fixed by High Court-Whether High Court was justified
    in interfering with functions of statutory authorities-Held, No-Such type
    of interference would impede even course of enquiry or investigation into
    serious allegation pendings-It is not the function of court to monitor
D   investigation process so long as such investigation does not transgress any
    provision of law-It must be left to investigating agency to decide venue,
    timings and question and manner of putting such question to persons
    involved-A blanket order fully insulating a person from arrest, held
    wyustified-Argument that respondent is a sick person, held not enough to
    claim pre arrest bail.
E
           In a raid conducted in the residential premises of the respondent, the
    officials of the Enforcement Directorate issued summons to the respondent
    under Section 40 of the foreign Exchange Regulation Act to interrogate the
    respondent in connection with recovery of certain documents and other
    materials in the raid. The respondent filed a writ petition challenging the
F   summons and praying for interim orders restraining the officials from
    proceeding with the summons. The respondent also filed an application for
    an order u/S 438 of the Code of Criminal Procedure. The Sessions Court
    granted ad interim bail order in favour of the respondent with a condition
    that he should report to the office of the Directorate on every Monday. The
G   Enforcement Directorate challenged the order and filed application for
    cancellation of the bail order. However the Division Bench dismissed the
    application while directing the department to interrogate the accused but not
    to put the accused on arrest till the applications pending disposal were
    decided. The department filed special leave petition alleging that the pre
    arrest bail order passed by the Sessions Court and the subsequent order
H                                       566
             DUKHlSHY AM BENUPA TI ASSTT. DIRECTOR v. A.K. BA.IORIA 567

        passed by the High Court would very badly affect the effectiveness and utility     A
        of the inquiry which the Directorate had to conduct into the serious allegations
        of FERA violations cases against the respondent; that respondent was
        successfully eluding from grilling interrogatories by adopting dilatory and
        contumacious tactics and that the respondent had suppressed the fact of his
        arrest earlier in a serious case of FERA violation involving a whopping sum        B
        of 37 crores of rupees and that he was continuing on bail.

              The respondent submitted that he presented himself for being
        interrogated on many days subsequent to the High Court order and nothing
        incriminatory was elicited from him so far and that the respondent was a
        sick person entitled to a pre arrest bail order.
                                                                                           c
              Allowing the appeal, the Court

               HELD: 1.1. In the instant case while sustaining the order granting
        pre arrest bail to the respondent in FERA violation case, the officials of the
        Directorate are injuncted by the Division Bench of the High Court from
        arresting the respondent and the time and place for carrying out the D
        interrogations were also fixed by the Division Bench. Such kind of supervision
        on the enquiry or investigation under a statute is uncalled for. Such type of
        interference would impede the even course of enquiry or investigation into
        the serious allegations now pending. For what purpose the Division Bench
        made such interference with the functions of the statutory authorities, which E
        they are bound to exercise under law, is not discernible from the order under
        challenge. It is not the function of the court to monitor investigation processes
        so long as such investigation does not transgress any provision of law. It
        must be left to the investigating agency to decide the venue, the timings and
        the question and the manner of putting such question to persons involved in
    •   such offences. A blanket order fully insulating a person from arrest would F
        make his interrogation a mere ritual. Considerations to be weighed with the
,       court while dealing with a prayer for pre-arrest bail order are materially
        different from a post-arrest bail application. The claim of the respondent that
        he made himself available for interrogation for several days after being
        armed with an order preventing his arrest is not of much relevance now G
        because that is not an aspect which can be taken advantage of by the respondent
        in this case. Similarly, the contention that respondent is a sick person is not
        enough to claim pre-arrest bail order. 1570-H; 571-A-E)

              1.2. The City Sessions Judge while granting the pre arrest bail .ignored
        the fact that the High Court has repeatedly refused to grant any relief to the     H
    568                     SUPREME COURT REPORTS [1997] SUPP. 5 S.C.R.

A   respondent in spite of different motions made by him regarding the very
    accusation against him. Appellant has a case that respondent had suppressed
    those facts in the application filed before the City Sessions Court for
    anticipatory bail. An endeavour has been made before this Court by the
    respondent to show that in fact he had mentioned about it in the application
B   for anticipatory bail, though by some lapse it did not find a place in the copy
    of the application furnished to the opposite party. Even if there was no
    sinister motive for the respondent to keep such facts out of the said copy
    what this Court now concerned about is that the City Sessions Judge has
    not considered those facts at all. [571-G-Hl

C         1.3. The Division Bench of the High Court has gone ostensibly wrong
    in passing the impugned order. Any further loss of time would further
    impair the effectiveness of the inquiry and/or investigation into those
    allegations. Considering the nature and seriousness of the allegations as
    well as largness of the amount involved the order granted by the City
    Sessions Judge is quashed while exercising the residual powers of this
D   Court to deal with the said order also. [572-A-Bl

          State rep. by the CBI v. Ani/ Sharma, JT (1987) 7 661; Pokar Ram v.
    State of Rajasthan & Ors., AIR (1985) SC 969 and The State of Andhra
    Pradesh v. Bimal Krishna Kundu & Anr., JT (1997) 8 382, relied on.

E       CRIMINAL APPEL LA TE JURISDICTION: Criminal App~al No.
    1116ofl997.

          From the Judgment and Order dated 20.6.97 of the Calcutta High Court
    in C.R.M. No. I 078 of 1997.


F
         S.B. Wad, D. Roy Chowdhary, (Wasim A. Qadri) and V.K. Venna for the          •
    Appellant

         R.K: Jain, Utpal Mazumdar, Tripurari Ray, Ms. Sarla Chandra, P. Ghose
                                                                                          ...
    and Dr. Laxmi Shastri for the Respondent.

          The Judgment of the Court was delivered by
G
          THOMAS, J. Leave granted.

          When the Enforcement Directorate (under Foreign Exchange Regulation
    Act, for short 'FERA') moved the High Court of Calcutta challenging an order
    passed by a sessions judge granting anticipatory bail to the respondent, a
H   Division Bench of the High Court made the position worse for the Enforcement
     DUKHISHYAM IJENUPATI ASSTT. DIRECTOR 1·. A.K. BAJORIA [THOMAS. J J   569
                                                                     " to move
Directorate (for short the Directorate). It necessitated the Directorate          A
this .court with the special leave petition.

       The officials of the Directorate wanted to interrogate the respondent in
connection with recovery of certain documents and other materials in a raid
conducted in the residential premises of the respondent. So they issued           B
summons to the respondent under Section 40 of FERA to appear before the
officials at New Delhi. But the respondent, instead of appearing in response
to the summons, approached the High Court with a writ petition challenging
the summons and praying for interim orders restraining the officials fr9m
proceeding with the sum11Jons. A single judge of the High Court however,
refused to grant any interim relief despite repeated motions made by the          C
respondent for that purpose. While the said writ petition was pending the
respondent filed an application in the City Sessions Court Calcutta for an
order under Section 43S of the Code of Criminal Procedure (for short the
Code). The City Sessions Judge granted ad-interim bail order on 19-3-1997 in
favour of the respondent with a condition that he should report to the office
of the Directorate at Calcutta on every Monday. Appellant challenged the          D
said order before the High Court in revision and a single judge of the High
Court disposed of the revision directing the City Sessions Court to hear both
parties and to take a final decision on merits. The City Sessions Judge
thereupon heard the parties and passed final order on 25-4-1997 in favour of
the respondent. The aggrieved appellant moved the Calcutta High Court             E
under Section 439(2) of the Code for cancellation of the said bail order. A
Division Bench of the High Court (R. Bhattacharyya and M.A. Chowdhury.
JJ) has passed the impugned order on 20-6-1997 the operative part of which
reads thus:

        "Persuaded by the aforesaid circumstances, we direct the department F
        to interrogate the accused at the Calcutta office, SA Lindsay Street,
        2nd Floor Calcutta-700 OS7 available from the summons. (No.T3/CP/
        179/ Cal/97/MLA/4S52 dated 13.6.97) issued by the Enforcement
        Directorate But the petitioner must not be put on arrest till the
        applications pending disposal are decided. The petitioner is to attend G
        on Monday. Tuesday, Wednesday, Thursday and Friday i.e. on 23rd
        June 1997 to 27th June 1997 at SA Lindsay street and shall report to ,
        Shri M.L. Acharya ChiefEnforcement Officer at 2 0 clock on the
        aforesaid dates. The interrogation is to con.tinue until 5 O'clock for
        each day. The prayer for further interrogation is left open which will
        be considered on hearing the parties Hearing to continue as before." H
    570                      SUPREME COURT REPORTS [1997] SUPP. 5 S.C.R.

A         Despite several postings thereafter and repeated requests made by the
    appellant for modification of the said order the Division Bench did not do
    anything in the matter and hence the appellant approached this court.

           According to the appellant the pre-arrest bail order passed by the
    Sessions Court and the subsequent order passed by the High Court would
B   very badly affect the effectiveness and utility of the inquiry which the
    Directorate has to conduct as enjoined by the statutory provisions into the
    serious allegations of FERA violations glaringly observed against the
    respondent. Learned counsel produced the files concerning the FERA violation
    cases against the respondent in which the magnitude of the amount involved
C   is indicated. Appellant pointed out that the City Sessions Judge as well as
    the Division Bench of the High Court have not given any consideration to
    certain serious aspects involved. One such aspect is that this respondent was
    caught earlier in a serious case of FERA violation involving a whopping sum
    of 37 crores of rupees and he was arrested in connection with that case on
    16-3-1990 and he is continuing on bail. A complaint was filed against him on
D   2-9-1994 before the Chief Metropolitan Magistrate, Calcutta for offence under
    Section 96 of FERA and the case is still pending. Another aspect is, the High
    Court of Calcutta had earlier refused to stop proceedings against the respondent
    in the present case in spite of repeated motions made by him in that hehalf.
    The next is that when the respondent failed to get any relief from the High
E   Court he adopted an alternative strategy by filing yet another writ petition
    challenging the constitutional validity of the provisions of FERA and in that
    writ petition he again moved for interim reliefs but a single judge of the High
    Court after hearing the respondent declined to grant any relief to him. Yet
    another fact pointed out is that respondent was successfully eluding from
    grilling interrogatories by adopting dilatory and contumacious tactics.
F
         Learned counsel for respondent defended both orders on the premises
  that the respondent presented himself for being interrogated on many days
  subsequent to the High Court order and nothing incriminating was elicited
  from him so far and that the respondent is a sick person entitled to a pre-arrest
G bail order.

        It seems rather unusual that when the aggrieved party approached the
  High Court challenging the order passed by a subordinate court the High
  Court made the position worse for the aggrieved party. The officials of the
  Directorate are now injuncted by the Division Bench from arresting the
H respondent and the time and places for carrying out the interrogations were
        DUKHISHYAM BENUPATI ASSTT. DIRECTOR v. A.K. BAJORIA [THOMAS, J.]    571

  also fixed by the Division Bench. Such kind of supervision on the enquiry A
  or investigation under a statute is uncalled for. We have no doubt that such
  type of interference would impede the even course of enquiry or investigation
  into the serious allegations now pending. For what purpose the Division
  Bench made such interference with the functions of the statutory authorities,
  which they are bound to exercise under law, is not discernible from the order B
  under challenge. It is not the function of the court to monitor investigation
  processes so long as such investigation does not transgress any provision
  of Jaw. It must be left to the investigating agency to decide the venue, the
  timings and the questions and the manner of putting such questions to
  persons involved in such offences A blanket order fully insulating a person
  from arrest would make his interrogation a mere ritual [ vide State rep by the C
  CBI v. Anil Sharma, JT (1997) 7 651].

        This court has pointed out time and again that considerations to be
  weighed with the court while dealing with a prayer for pre-arrest bail order
  are materially different from a post-arrest bail application. [vide Pokar Ram
  v. State of Rajasthan & ors., AIR (1985) SC 969, State rep by the CBI v. Anil    D
  Sharma, JT (1997) 7 651 and The State of Andhra Pradesh v. Bimal Krishna
  Kundu & Anr., JT (1997) 8 382.

        The argument of the learned counsel for the respondent that he made
  himself available for interrogation for several days after being armed with an
  order preventing his arrest is not much relevance now because that is not an     E
  aspect which can be taken" advantage of by the. respondent in this case.
• Similarly the contention that respondent is a sick person is not enough to
  claim pre-arrest bail order. Hence we are not inclined to go into the dispute
  whether respondent is suffering from any such health condition.

         That apart how could the City Sessions Judge have ignored the fact        F
  that the High Court of Calcutta has repeatedly refused to grant any relief to
  the respondent in spite of different motions made by him regarding the very
  accusation against him. Of course appellant has a contention that respondent
  has suppressed those facts in the application filed before the City Sessions
  Court for anticipatory bail. An endeavour has been made before us by the         G
  respondent to show that in fact he had mentioned about it in the application
  for anticipatory bail though by some lapse it did not find a place in the copy
  of the application furnished to the opposite party. Even if we assume that
  there was no sinister motive for the respondent to keep such facts out of the
  said copy what we are now concerned about is that the City Sessions Judge
  has not considered those facts at all.                                           H
    572                     SUPREME COURT REPORTS [1997] SUPP. 5 S.C.R.

A         We have no doubt that the Division Bench of the High Court has gone
    ostensibly wrong in passing the impugned order. When we perused the files
    concerning the allegations against the respondent (which the Directorate had
    made available to us) we strongly feel that any further loss of time would
    further impair the effectiveness of the inquiry and/or investigation into those
B   all~gatiohs. Considering the nature and seriousness of the allegations as well
    as largness of the amount involved we have no doubt that the order granted
    by the City Sessions judge should not remain alive. We are, therefore,
    constrained to stretch the arms of the residual powers of this court to deal
    with the said order also.

C         In the result we set aside the impugned order passed by the Division
    Bench of the Calcutta High Court and we also annul the pre-arrest bail order
    dated 25-4-1997 passed by the City Sessions judge. The petition filed by the -
    appellant before the Calcutta High Court for cancellation of the bail order will
    stand disposed of in the above terms. Appeal is accordingly allowed.

D R.A                                                             Appeal allowed.




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