2010 (2) TMI 941 - HC - Central Excise

Investigation - The learned ACMM directed that the respondent accused be not interrogated in Central Jail, Tihar but he be brought to the Court and any enquiry be made before the court - There is no provision in Cr.P.C. that a court can order that an enquiry be made from the accused in its presence nor the court can order that interrogation of accused by the investigating agency be done in presence of the court - The inherent powers under Section 482 Cr.P.C. have been granted only to the High Courts and there are no inherent powers available to the courts subordinate to the High Court - the investigation and adjudication are done by two separate wings and the courts cannot become party to the investigation - Once the investigation is done in presence of the court, the court becomes a witness to the investigation - the order dated 18th September 2010 passed by learned ACMM granting bail to the respondent is hereby set aside and the matter is remanded back to the present ACMM for considering the application of the respondent/accused afresh on merits without being influenced by the order of earlier ACMM. Powers to interfere into the investigation - The Supreme Court laid down that it is not necessary for prosecution to examine the person, who was the sanctioning authority, to prove the sanctioning order - Despite clear ruling of the Supreme Court, the learned ACMM had been passing orders contrary to the judgment of the Supreme Court and despite every sanctioning order being in detail giving facts and reasons for granting sanction, the learned ACMM had been passing orders that the sanction was granted without application of mind, though law is that the court cannot draw any adverse conclusion that the sanction for prosecution was not properly granted or was defective without indicating any basis for such conclusion - Out of 78 cases decided by this ACMM from April, 2010 to October 2010, he discharged/acquitted accused persons in 73 cases only on this technical ground. The conviction in remaining five cases was under compulsion because accused persons pleaded guilty - ACMM transgressed all limits of judicial propriety.

Summary

Issues: Petition for cancellation of bail on the grounds of judicial impropriety and interference in investigation by the learned ACMM.

Analysis:
1. The petitioner filed a petition under Section 482 Cr.P.C seeking the cancellation of bail granted to the respondent/accused by the learned ACMM. The petitioner alleged that the ACMM transgressed judicial propriety by involving himself in the investigation process and subsequently hearing the bail application himself. The petitioner contended that the ACMM directed the respondent to be brought before the court for interrogation instead of allowing the investigating officer to conduct the inquiry, thereby blurring the lines between judicial and executive functions.

2. The court referred to the Privy Council's observation in Emperor v. Khwaja Nazir Ahmad, emphasizing the importance of not interfering with the police in matters within their investigative domain. The court highlighted that the judiciary and the police have distinct roles, and interference in the investigation process may lead to prejudice towards either the accused or the prosecution. The court reiterated that the investigation of offenses is an executive function, and the judiciary should not intervene in the investigative stage unless there is a risk of miscarriage of justice.

3. The court emphasized that the inherent powers under Section 482 Cr.P.C are vested only in the High Courts and not in subordinate courts. It reiterated that the courts must adhere to the provisions of the Cr.P.C and maintain the separation between judicial and executive functions. Citing various Supreme Court judgments, the court underscored that the courts should not interfere in the investigation process unless there is a compelling reason to do so, as monitoring investigations excessively could hamper the investigative agency's functions.

4. The court noted that the learned ACMM's interference in the investigation process was not an isolated incident but part of a pattern where the ACMM displayed a lack of understanding of criminal law. The court observed that in several cases, the ACMM had discharged or acquitted accused persons on technical grounds related to the validity of sanctions, contrary to established legal principles. Despite clear rulings by the Supreme Court on sanction requirements, the ACMM consistently acquitted individuals on the basis of alleged defects in sanction orders, leading to a high rate of acquittals based on technicalities.

5. Considering the conduct of the learned ACMM and the violation of judicial propriety, the court set aside the bail granted to the respondent and remanded the matter to the present ACMM for a fresh consideration of the bail application on its merits. The court directed the respondent to surrender before the ACMM for a new hearing on the bail application, emphasizing that the decision should be based on legal merits without influence from the previous ACMM's order.

6. The court disposed of the petition with the above order, highlighting the importance of maintaining the integrity of the judicial process and upholding the separation of powers between the judiciary and the executive in criminal investigations.