By Adv Rajeev Gomes
A bare perusal of the order dated 17/8/2015 of Churchill Alemao and the order dated 19/8/2015 of Mr Digambar Kamat, discloses that an absolutely perverse and illegal order has been passed in favour of Digambar Kamat.
The following facts reveal the perversity and illegality of the order .The Special Court in the order in Alemao’s matter has made the following observations:
Economic offences are class apart as held by the Apex Court because it is considered as crime committed by while collared highly esteemed persons with a calculated and pre-meditated design to cause wrongful loss to the exchequer and wrongful gain to them by conspiring and manipulating record. In the present matter also the company was forced to pay alleged cash amount by showing under different heads in the statement of accounts which has been already exposed during the internal audit and prosecuted in US court. In order to collect all necessary material sufficient time and efforts are required.”
It is pertinent to note that such observation has not been made in the case of Kamat. The application of Section 41(1)(b) to the case of Kamat is perverse and illegal. The Special Court has relied upon the non compliance of Section 41(1)(b)(ii) of CrPC by the Investigating Officer in the context of the directions issued by the Supreme Court in Arnesh Kumar v. State of Bihar, as the main plank for the grant of anticipatory bail to Kamat .
Section 41(1)(b) reads as under : When police may arrest without warrant (1) Any police officer may without any order from a magistrate and without a warrant, arrest any person
(b) against whom a reasonable complaint has been made, or credible information has been received or a reasonable suspicion exists that he has committed a cognizable 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, if the following conditions are satisfied, namely: The police officer has reason to believe on the basis of such complaint, information or suspicion that such person has committed the said offence; the police officer is satisfied that such arrest is necessary –
(a) to prevent such person from committing any further offence, or
(b) for proper investigation of the offence, or
(c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or
(d) to prevent such person from making any inducement ,threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or
(e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured, and the police officer shall record while making such arrest ,his reasons in writing;
Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest. A bare perusal of Section 41(1)(b)(ii) of CrPC and the observations made by the Supreme Court clearly reveal that the investigating officer has to record his reason in writing only while making the arrest, ie at the time of effecting arrest and not at any other time during investigation.
The Special Court has observed in the order of Kamat that in the present matter I have perused the case diary in detail and observed that there are no such reasons recorded in it, after the interrogation of the applicant on two occasions at stated above. The reasons must be in the case diary and it cannot be argued that such reasons are disclosed by the IO while opposing the bail application filed by the applicant on apprehending arrest at the hands of IO.
Vis-à-vis para 39 of the Order, I have to state that the question of recording reasons in writing after interrogation would not arise, as they ought to have been recorded only if Kamat was arrested.
The Magistrate’s duty to verify commences only after an accused is arrested and produced before him. In this case, Kamat was not arrested and produced before the Special Court, and therefore the Special Court had no jurisdiction to look for the reasons to arrest in the case dairy.
Next aspect canvassed by the learned PP is that there is clinching evidence against the applicant showing his involvement in the said offence and statement of the witnesses together with the accused person has been recorded. No doubt there is some material collected by the IO which prima facie implicate the applicant, however, considering the severity of punishment which could be imposed, if found guilty, may extend to seven years and thus it is mandatory for the IO to follow the conditions laid down in Sec 41 and Sec 41 A of CrPC as discussed above without which, arrest becomes unlawful.
I have to state that the Special Judge lost sight of the fact that Section 41 of CrPC would be applicable only at the time of effecting arrest and only on its non-compliance the arrest would be illegal. In this case Digambar Kamat was not arrested at all, so the question of legality of the arrest would not arise at all.
There is perverse application of Section 41A of CrPC to the case of Kamat. Proviso to Section 42(1)(b) of the Cr.P.C.is as follows: Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest.
Section 41A of Cr. P.C. is as follows : – Notice of appearance before police officer. (1) The police officer shall, in all cases where the arrest of a person is not required under the provisions of sub-section (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 cognizable offence, to appear before him or at such other place as may be specified in the notice.
(2) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice.
(3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested.
Aforesaid provision makes it clear that only in cases where the arrest of a person is not required under Section 41(1), CrPC, the police officer is required to issue notice directing the accused to appear before him at a specified place and time.
The question of application of Section 41A would arise only if the IO had decided not to arrest Digambar Kamat and had recorded his reasons not to arrest Digambar Kamat.
There was no material on record showing the above intention of the Investigating Officer not to arrest Digambar Kamat and therefore the observation of the Special Court that the Investigating Officer was exercising powers under Section 41A of CrPC, is not borne out from the case dairy and is a figment of imagination of the Special Judge.
The Special Court failed to appreciate the fact that Kamat was interfering with the investigation and the administration of justice. The Special Judge has observed the following in his Order: “It was contended strongly by the learned PP that the applicant by putting pressure obtained some information under RTI stating therein that all files pertaining to the matter are already received/attached by the IO. However such information has been obtained by using political pressure. He submitted that the statement of the concerned officer is recorded u/s 161 CrPC wherein he has stated that all files are not handed over and he was forced to give such information”
“Apart from the question of pointing finger of accusation against the present applicant in connection with a serious charge of conspiracy and facilitating the bribe money to pass from one hand to another, the offence alleged is of economic nature which resulted in loss to the Government Exchequer. Though it was contended that there is prima facie case and there is possibility that the applicant may tamper with the witnesses, apart from such statement, no material is placed on record however in this case being of conspiracy such aspect cannot be lightly brushed aside. …”
“The applicant is no doubt a politician and an Ex-CM of the state as well as present MLA of Margao constituency, but this aspect will not stamp him as a influential person as far as the aspect of putting pressure on the persons who are acquainted with the facts of the present matter and dissuade them from disclosing it to the court or to the police. A person having political background is having considerable amount of respect in the society and such respect cannot be termed as influence which could be utilized for pressurizing witnesses unless some material facts are brought on record to substantiate about it.” The above observations were made by the Special Court despite the fact that it was clearly brought on record and argued before the Special Court that Kamat in connivance with Arthur D’Silva had managed to influence government officials of JICA to furnish false information to screen Kamat in the case, and that Section 201 of IPC was also added to the case.
The discussion of the Special Judge on the above aspect of influencing government servants to derail the investigation and interfering with the administration of justice, is completely missing in the order.
In sum and substance, I am of the firm opinion that the:
Though the Special Court has observed that there is a prima facie case against Kamat, the Special Court failed to appreciate that Kamat was the main conspirator, and the release of Digambar Kamat would cripple the investigation.
The Special Court failed to appreciate that there was sufficient evidence collected by the investigating officer which establishes Kamat’s prime role in the case.
The Special Court failed to appreciate that Kamat was required in police custody for his custodial interrogation to investigate into the entire conspiracy and to find out his entire role in the crime.
In fact the Special Court ought to have been guided by his own observations made in the Order regarding Churchill Alemao which are reproduced below:
“The Investigating Agency is trying to unearth the entire conspiracy which is stated as a deep rooted conspiracy and to bring the truth before the Court and for that purpose the Investigating Agency must be given sufficient time to investigate in proper manner.
Coming back to the facts of the present matter, I have already observed that the applicant/accused is in custody at present and the Investigating Agency need sufficient time to dig out the deep-rooted conspiracy in order to find out the truth. The applicant/accused is allegedly involved in conspiracy which itself is a ground to show that the same is a serious matter and affecting the economy of 21 the State/Country as a whole thereby posing a serious threat to the financial health of the Country/State. There is no material to show that the matter is only due to political vendetta against the accused as there are statements of witnesses who have disclosed of delivery of cash at the residence of the applicant and the Company itself admitted its guilt of paying the bribe to the Minister in Goa, before New Jersey District Court. 40.
Similarly the circumstances existing at present clearly show that it is the collective interest of the community which outweighs the right of personal liberty of the individual concerned and therefore the contention raised by the Ld. Public Prosecutor for rejection of bail is having substantial force. With the result, and for the reasons stated above, I am not inclined to grant bail to the applicant at this stage and hence the order.”
Though it was strongly contended before the Special Court that the custody of Kamat was required to trace the bribe money and its appropriation, a discussion on the same is strangely missing in the Order.
The imminent potential of Kamat in tampering with evidence and influencing witnesses was strangely overlooked by the Special Court, more so when evidence of interference with administration of justice by him was already presented to the Court.
Though the Investigating Officer contended that Kamat is required to be interrogated in connection with the missing noting file and that he had a photocopy of the said missing noting file, which he flaunted before the media, the Special Court did not give much attention to the same and wrongly dismissed the contention on grounds that the Kamat was not in power since 2012, etc.
(Disclaimer: The opinion furnished by the Learned PP to the government through its senior most officers in public domain. The views expressed are of Adv Rajeev Gomes. Herald does not in any way associate itself with the contents of the letter and will not be responsible for any developments as a consequence of Adv Gomes writing this letter)
