Central Bureau of Investigation Versus Vikas Mishra @ Vikash Mishra

Central Bureau of Investigation Versus Vikas Mishra @ Vikash Mishra 

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 957 OF 2023

Central Bureau of Investigation …Appellant

Versus

Vikas Mishra @ Vikash Mishra …Respondent

J U D G M E N T

M.R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the

impugned judgment and order dated 30.09.2022 passed

by the High Court of Calcutta in Criminal Miscellaneous

Application No. 1638/2022, by which the Division Bench

Criminal Appeal No. 957/2023 Page 1 of 14

of the High Court has directed to release the respondent –

accused on statutory/default bail under Section 167(2) of

the Code of Criminal Procedure (Cr.P.C.), the Central

Bureau of Investigation (CBI) has preferred the present

appeal.

2. The facts leading to the present appeal in nutshell

are as under:

That on 27.11.2020, an FIR/complaint came to be

registered by the CBI (ACB, Kolkata) against inter alia the

officials of Eastern Coalfield Limited, CISF, Railways and

others for the commission of offences under sections

120B/409 of the IPC and the relevant provisions of the

Prevention of Corruption Act. That on 16.04.2021, the

respondent – accused Vikas Mishra came to be arrested

by the CBI and was remanded to the CBI custody for a

period of seven days i.e., till 22.04.2021. However, during

the said period of remand to CBI custody, the respondent

– accused Vikas Mishra was admitted in the hospital and

thus could not be interrogated by the CBI despite police

custody remand.

2.1 That on 21.04.2021, the respondent-accused was

enlarged on interim bail by the learned Special Court

which came to be extended from time to time. On

08.12.2021, the learned Special Court cancelled the

Criminal Appeal No. 957/2023 Page 2 of 14

interim bail of the respondent-accused on the ground that

he did not appear before the Special Court despite

specific directions and also did not cooperate with the CBI

investigation. That on 09.12.2021 and pursuant to the

interim bail being cancelled, the respondent-accused

came to be arrested again on 11.12.2021 and was

remanded to judicial custody. That again from 12.12.2021

to 08.04.2022, while in judicial custody, the accused got

admitted to the hospital and then again from 07.05.2022

to 08.09.2022.

2.2 That the accused submitted an application for

default bail under Section 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 Judge rejected

the said application inter alia on the ground that the

accused was not remanded to custody under Section

167(2) Cr.P.C. after cancellation of his bail on the grounds

that the accused was granted interim bail under the

provisions of Chapter XXXIII Cr.P.C. and his detention

pursuant to cancellation of bail was on the strength of

warrants issued by the Court. That on 19.07.2022, the

CBI filed a charge sheet against the accused and the

cognizance was taken by the learned Special Court on the

same date.

Criminal Appeal No. 957/2023 Page 3 of 14

2.3 Against the judgment and order passed by the

learned Special Judge rejecting the application submitted

by the accused – Vikas Mishra for statutory/default bail

under Section 167(2) Cr.P.C., the respondent-accused

preferred the present application before the High Court.

By the impugned judgment and order, the High Court has

allowed the said application and has directed to release

the respondent on statutory/default bail under Section

167(2) Cr.P.C. as even within 90 days from the date of rearrest, i.e., from 11.12.2021, the charge sheet was not

filed and which came to be filed only on 19.07.2022.

Against the impugned judgment and order passed by the

High Court directing to release the respondent-accused

Vikas Mishra on statutory/default bail, the CBI has

preferred the present appeal.

3. While issuing notice on 27.02.2023, this Court

passed the following order:

“Issue notice to consider the prayer of the

Investigating Agency to have the custodial

interrogation of the accused, making it returnable on

13.03.2023.

Shri Rajat Sehgal, learned counsel accepts notice

on behalf of the respondent, who is on caveat.

To be notified within first ten items.”

4. Ms. Aishwarya Bhati, learned ASG appearing on

behalf of the CBI has vehemently submitted that as such

Criminal Appeal No. 957/2023 Page 4 of 14

the CBI got the police custody remand for a period of

seven days on 16.04.2021 till 22.04.2021. It is submitted

that however the accused got himself first admitted to

hospital and thereafter got interim bail which came to be

subsequently cancelled on 08.12.2021, the CBI could not

exercise the police custody remand which 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

days police custody remand attained finality and therefore

the CBI should be given the police custody remand of the

accused for the remainder period of 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 other and therefore as such

successfully frustrated the order of police remand allowed

by the learned Special Judge. It is submitted that nobody

can be permitted to frustrate the court’s process.

4.3 Making above submissions, it is prayed to grant the

police custody remand of the respondent-accused for the

remainder period of seven days which the CBI could not

exercise because of the respondent got himself

hospitalised and was released on interim bail.

5. The present application and the prayer of the CBI

for further police custody remand is vehemently opposed

Criminal Appeal No. 957/2023 Page 5 of 14

by Shri Neeraj Kishan Kaul, learned Senior Counsel

appearing on behalf of the respondent – accused.

5.1 Relying upon the decisions of this Court in the case

of Central Bureau of Investigation v. Anupam J.

Kulkarni, reported in (1992) 3 SCC 141 and the

subsequent decision in the case of Budh Singh v. State

of Punjab, reported in (2000) 9 SCC 266, it is

vehemently submitted by Shri Neeraj Kishan Kaul,

learned senior counsel appearing on 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 submitted that therefore now the police

custody which shall be beyond the period of 15 days from

the date of arrest is not permissible.

5.2 It is further submitted that even otherwise in the

present case the respondent-accused was hospitalised

from time to time due to his grave and fragile medical

condition. That on 18.04.2021, the health of the

respondent heavily deteriorated due to which he had to be

admitted in the hospital by the appellant agency itself. It

is submitted that thereafter on 20.04.2021 he was

transferred to another hospital – a government hospital for

better treatment and medical facilities. It is submitted that

therefore there is no substance in the submission on

Criminal Appeal No. 957/2023 Page 6 of 14

behalf of the investigating agency that on 18.04.2021 the

accused got himself admitted to the hospital to evade his

custody.

5.3 It is further submitted that even otherwise between

08.04.2022 to 18.04.2022 when the respondent was

remanded to police custody in another case, during that

time, he was extensively interrogated in the present RC

as well. It is submitted that even while on interim bail the

respondent accused was interrogated. It is submitted that

therefore the prayer on behalf of the CBI made now to

have the police custody of the respondent-accused may

not be granted.

5.4 Shri Neeraj Kishan Kaul, learned senior counsel

appearing on behalf of the accused has drawn our

attention to the pendency of the Special Leave

Petition(Criminal) Nos. 1620-1621/2021 filed by the coaccused in which the investigation by the CBI itself is

under challenge and this Court passed an interim order

that no coercive steps be taken against the petitioner of

that special leave petition.

5.5 Making above submissions, it is prayed to dismiss

the present appeal.

6. We have heard learned counsel for the respective

parties at length.

Criminal Appeal No. 957/2023 Page 7 of 14

While considering the prayer of the CBI for police

custody for the remainder period of seven days, it is

required to be noted that as such the learned Special

Judge granted seven days police custody of the

respondent-accused on 16.04.2021. The order granting

seven days police custody as such had attained finality.

However, it so happened that before the seven days

police custody is over and before the CBI exercises the

power of interrogation for full seven days which as per the

order passed by the learned Special Judge was available

to the CBI, the respondent-accused got himself

hospitalised on 18.04.2021. On 21.04.2021, the learned

Special Judge granted interim bail to the accused. As per

the settled position of law therefore once on bail/interim

bail, during that period there cannot be any police

custody. Therefore, the CBI could not interrogate the

respondent-accused for full seven days under the police

custody remand, which otherwise the CBI was entitled to.

That thereafter, the accused remained in the hospital from

time to time during the interim bail which also came to be

extended from time to time. That thereafter, by order

dated 08.12.2021, the learned Special Judge cancelled

the interim bail by observing that the respondent accused

has misused the interim bail and has not cooperated with

Criminal Appeal No. 957/2023 Page 8 of 14

the CBI in investigation and that there was no valid reason

for his hospitalisation. The learned Special Judge also

observed that in view of the non-cooperation by the

accused, the interrogation of the accused under judicial

custody/police custody has necessitated. Some of the

observations made by the learned Special Judge made in

the order dated 08.12.2021 cancelling the interim bail are

relevant, which are as under:

“Heard both sides, perused the materials in the CD and in

the case record and considered.

Following propositions were submitted and seems to be

admitted that neither the accused person has attempted to tamper

any evidence nor he is likely to flee from justice. The only aspect on

which the present prayer under adjudication seems to be banked

upon is that the accused person willfully halted the progress of the

investigation by not cooperating the investigating agency during his

attendances before them. For that I am here to decipher how

genuine the allegation is and as to whether such alleged noncooperation on the part of this accused person is a sufficient ground

to curb his bailed freedom and commit him back to custody invoking

section 437(5) Cr. P.C. I have carefully gone through the transcribed

conversations on different dates between the 10 and this accused

person while on bail and the 10. The answers given to questions

put to him are by no means in the direction of corroborating the

contents of the documentary evidence collected by the 10 during

the investigation. The statements of the witnesses recorded u/s 161

and 164 Cr. P.C. and the documentary evidence like account

statements etc. collected disclose direct involvement of this

accused person in transmitting huge sums, to yet unknown or

unidentifiable entities. This money trail also bears a direct linkage to

the other FIR named accused persons, whether or not public

servants, as it transpires from the CD. Any man of common

prudence would understand that unless these details are elicited

the investigation would be badly hampered and the total truth will

never be unearthed. In such circumstances I feel that judicial

detention and custodial interrogation of the accused person have to

Criminal Appeal No. 957/2023 Page 9 of 14

be resorted to. I also am convinced to say that this non-cooperation

is consciously active and pre-designed and this is sufficient to

presume willful misuse of liberty of bail on the part of the accused

person which he obtained exclusively on medical ground. In my

appreciation allowing furtherance of this liberty would certainly

defeat the cause of public justice. The nature and seriousness of

the offence, the character of evidence collected before and after the

interim bail was granted as against this accused person, the

present circumstances and shown gesture of designed reluctance

of the accused person in assisting the investigation to progress, and

the larger interest of the public and the nation - all at a time, impel

me to jump to the judicial inference that the accused person should

no more be allowed to enjoy the liberty of the interim bail granted to

him on 21.04.2021 and which has been extended from 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 separate mentioning. So far as the

present health condition of the accused person is concerned from

the documents supplied on behalf of the accused person, it is

definitely evident that his health is in condition than what he was in

at the time of obtaining the Interim Bail, of course with advice by the

doctors to keep away from physical and mental stress. But only that

should not save him from the rigours of incarceration which he was

supposed to be in, had the illness of that not there at the time of

getting magnitude been not person the interim bail. There is nothing

in the medical documents to assume that the accused is not fit

enough to move, think or talk properly, as was urged by the Ld.

Advocate for the accused person. In the contrary it is found that the

accused person is suffering from cirrhosis of liver since before this

case was initiated and there had been ups and downs in his health

condition. For that this court cannot let the truth submerge in the

plea of his chronic ailments.

Coming to the medical reports submitted today it is found

that today at 12.10 am he shifted himself to Apollo Hospital where

he was examined and was readily admitted in some medically

unspecified ward (Deluxe) under treatment of a specialist

pulmonologist. Notable that the documents produced show that the

emergency admission advice form has been struck down by hand

making it a direct admission advice form and the bed number there

is also illegible due to repeated overwriting. The admission form

submitted shows that expected length of stay of the patient at the

hospital is nil. Even if it is accepted that the accused person is

Criminal Appeal No. 957/2023 Page 10 of 14

admitted in hospital for a suspected pulmonary tract infection, that

does not take away the adverse inferences already drawn by this

court hereinabove. For the sake of precise investigation coercive

participation of the accused person by way of judicial detention now

appears to be imminent and indispensable.”

7. In light of the aforesaid facts and circumstances and

the observations made by the learned Special Judge

while cancelling the interim 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 days from the date of arrest. In

our opinion, the view taken by this Court in 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-accused that in a given case it may

happen that the learned trial/Special Court refuses to

grant the police custody erroneously which as such was

prayed within 15 days and/or immediately on the date of

arrest and thereafter the order passed by the trial/Special

Court is challenged by the investigating agency before the

higher Court, namely, Sessions Court or the High Court

and the higher Court reverses the decision of the learned

Magistrate refusing to grant the police custody and by that

Criminal Appeal No. 957/2023 Page 11 of 14

time the period of 15 days is over, what would be

position? The learned senior counsel 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 allowed police custody of the

respondent-accused for seven days i.e., up to 22.04.2021,

the respondent-accused got himself admitted in the

hospital during the period of police custody, i.e., on

18.04.2021 and obtained interim bail on 21.04.2021 which

came to be extended till 08.12.2021 when his interim bail

came to be cancelled by the learned Special Judge by

observing that the accused has misused the liberty shown

to him and during 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 seven days police

custody attained finality. However, due to the aforesaid

reasons of having got the accused himself hospitalised on

18.04.2021 and thereafter obtaining the interim bail on

21.04.2021, the CBI could not interrogate the accused in

the police custody though having a valid order in its

favour. Thus, the respondent-accused has successfully

avoided the full operation of the order of police custody

granted by the learned Special Judge. No accused can

Criminal Appeal No. 957/2023 Page 12 of 14

be permitted to play with the investigation and/or the

court’s process. No accused can be permitted to frustrate

the judicial process by his conduct. It cannot be disputed

that the right of custodial interrogation/investigation is also

a very important right in favour of the investigating agency

to unearth the truth, which the accused has purposely and

successfully tried to frustrate. Therefore, by not permitting

the CBI to have the police custody interrogation for the

remainder period of seven days, it will be giving a

premium to an accused who has been successful in

frustrating the judicial process.

9. Now so far as the submission on behalf of the

accused about the pendency of Special Leave Petition

(Criminal) Nos. 1620-1621/2021 by the co-accused before

this Court and the interim order that “no coercive steps be

taken against the petitioner therein” is concerned, it is

required to be noted that the pendency of the special

leave petitions at the behest of the co-accused has

nothing to do with the present proceedings. It is required

to be noted that the accused in the present case - Vikas

Mishra in fact filed a similar special leave petition,

however, this Court declined to grant the permission to the

respondent-accused to file the special leave petition by

Criminal Appeal No. 957/2023 Page 13 of 14

reserving liberty in his favour to pursue the remedies

which were available in law.

10. In view of the above and for the reasons stated

above, the present appeal succeeds. The appellant-CBI

is permitted to have the police custody remand of the

respondent for a period of four days (taking into

consideration that pursuant to order dated 16.04.2021

passed by the learned Special Judge the police custody

remand of seven days of the respondent-accused was

granted, however for the reasons stated above, the CBI

could interrogate the respondent-accused only for a

period of two and half days and therefore could not

exercise the right of interrogation for the full period of

seven days of police custody remand).

11. The instant appeal is accordingly allowed to the

aforesaid extent.

……………………………J.

[M.R. SHAH]

NEW DELHI; ……………………………J.

APRIL 10, 2023. [C.T. RAVIKUMAR]

Criminal Appeal No. 957/2023 Page 14 of 14