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Chandraswamy v. C.B.I

Delhi High Court

Nov 24, 1995

Judgment

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Factual and Procedural Background

This petition under Section 482 of the Code of Criminal Procedure was moved by the Central Bureau of Investigation (C.B.I.) seeking recall of this Court's order dated 4.9.1995, which had granted permission to the non-applicant, Chandraswami, to go abroad for six months from 6.9.1995 subject to conditions.

The underlying criminal proceedings began with a complaint by Lakhubhai Pathak against Chandraswami and K.N. Aggarwal, registered as FIR No. RC-1(S)/88.S.I.U(ix) under Section 120-B IPC read with Section 420 IPC. Chandraswami was arrested and later enlarged on bail subject to conditions including that he should not leave the country without prior written permission of the Court and prior intimation to the CBI.

When a Magistrate refused permission to travel abroad, Chandraswami petitioned the High Court (Crl.M(M) No. 447/88) and was granted leave to go abroad on 4.8.1988. That permission was subsequently extended from time to time; the last extension was the order dated 4.9.1995 which the CBI sought to recall.

The CBI’s stated grounds for recall included (a) alleged non-compliance by Chandraswami with a Court direction to furnish full addresses of places stayed during foreign visits; (b) disclosure statements by Om Prakash @ Babloo Srivastava in another investigation (relating to the murder of L.D. Arora) stating that Babloo stayed in Chandraswami's ashram and “fronted” for him; and (c) apprehensions that Chandraswami might tamper with evidence abroad or not return to India if permitted to travel.

The CBI did not allege that it possessed evidence showing actual tampering by Chandraswami while in India or abroad. During proceedings the CBI’s counsel stated, among other things, that Chandraswami had been interrogated on 16.9.95 and 18.9.95 in relation to Babloo's disclosures, that Chandraswami's passport was with the CBI, and that the CBI had not filed a charge sheet in the 1988 FIR as of the date of the judgment.

Legal Issues Presented

Whether this Court should recall its order dated 4.9.1995 that granted Chandraswami permission to go abroad for six months.
Whether the CBI's asserted change in circumstances (non‑compliance with reporting conditions and disclosure statements by a co-accused in other matters) justified recalling the earlier order in the pending FIR arising out of Lakhubhai Pathak's complaint.
Whether the orders and conditions in the criminal proceedings arising from the 1988 FIR should be affected or mixed up with distinct investigations and disclosure statements relating to other criminal cases (including the murder of L.D. Arora).

Arguments of the Parties

Central Bureau of Investigation (CBI) — Arguments

The CBI sought recall of the 4.9.1995 order on the grounds of changed circumstances set out in paragraphs 8, 9 and 11 of its petition.
It alleged that Chandraswami had failed to fully comply with Court directions to furnish addresses of places stayed during foreign visits; incomplete statements were filed.
The CBI relied on disclosure statements of Om Prakash @ Babloo Srivastava (in RC.10(S)/95-SIU(V), SC.II), suggesting Babloo stayed in Chandraswami’s ashram and fronted for him, and that further verification (including abroad) was required.
The CBI expressed apprehension that if Chandraswami were allowed to go abroad he might not return, might temper with evidence in the U.S.A., Canada and elsewhere, and thus hamper ongoing investigations across multiple matters.
The CBI requested further time (six months) to interrogate Chandraswami in connection with five other criminal matters indicated by the disclosures.

Chandraswami (Non‑applicant) — Arguments

No written reply had been filed by the non‑applicant, but his counsel orally admitted a “technical lapse” in complying fully with the condition to furnish addresses of places stayed abroad.
Counsel denied that his client showed disregard for the Court and asserted that Chandraswami had the utmost regard for the Court.
Counsel pointed out that the CBI had not filed a charge sheet in the 1988 FIR (as of 22.11.1995) and argued it was unreasonable to keep his client restrained from traveling abroad on that basis.
Regarding the disclosure statements of Babloo, counsel argued those related to other criminal matters and not to the specific FIR for which permission to go abroad had been granted; he emphasized that his client had been available for interrogation (including on 16.9.95 and 18.9.95) and that the CBI held the passport, so the CBI could follow lawful procedures for further inquiry.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The Court articulated a focused analysis addressing the specific grounds advanced by the CBI and the scope of the earlier order:

Separation of proceedings: The Court emphasized that the criminal proceedings arising from the 1988 FIR (Lakhubhai Pathak) should not be “mixed up” with or affected by investigations in the other five criminal matters into which the CBI was inquiring based on Babloo's disclosures. The judge treated the earlier order permitting travel as pertaining to the specific FIR and its own conditions.
Lack of evidence of tampering: The CBI had admitted it possessed no evidence that Chandraswami had tampered with evidence either in India or abroad. The judge observed that, had such evidence existed, the CBI would likely have objected to the grant of permission on 4.9.1995; in fact, the 4.9.1995 order recorded that the CBI had no objection to the travel permission then.
Availability of legal process: The Court noted that if the CBI wished to interrogate Chandraswami in other matters, it could resort to the legal processes available to it. The Court also noted that the CBI held Chandraswami’s passport, which could be material to preventing departure if warranted.
Requirement for cogent reasons to recall judicial orders: The Court stated that recalling a judicial order requires cogent reasons specific to the case in which the order was passed. The CBI's stated apprehensions and material did not, in the Court's view, furnish cogent reasons to recall the 4.9.1995 order insofar as the 1988 FIR was concerned.
Non‑compliance with an express condition: Separately, the Court addressed the admitted partial non‑compliance with the specific condition that Chandraswami keep the CBI informed every ten days of addresses/places where he stayed while abroad. The Court observed that, although the default could have attracted strict notice, the absence of any evidence of tampering weighed against severe action at that stage.
Interim remedial direction: Given the admitted failure to comply fully with the reporting condition, the Court concluded some step was necessary to ensure compliance. Thus the Court ordered that Chandraswami should not avail himself of the permission under the 4.9.1995 order until he furnished complete information to the Court and the CBI in compliance with that specific condition.

Holding and Implications

Core Ruling: The Court refused to recall the order dated 4.9.1995 granting permission to Chandraswami to go abroad; the petition to recall that order was rejected and the petition was disposed of accordingly.

Direct consequences for the parties:

Chandraswami may not avail the travel permission granted by the order dated 4.9.1995 until he complies in entirety with the condition to furnish complete information regarding the addresses and places where he stayed during his visits abroad. He must furnish this information to both the Court and the CBI before he travels.
The CBI was not granted the relief of recall based on the materials presented; the Court made clear that the CBI remains free to pursue lawful processes for interrogation or investigation in the other matters referenced by disclosure statements.

Broader implications: The opinion does not discuss the creation of any new legal precedent. The decision effects only the immediate relief sought: refusal to recall the 4.9.1995 order while imposing a compliance condition as a prerequisite to availing that permission.

Show all summary ...

A.K Srivastava, J.— Crl.M.No 4352/95

1. This petition has been moved under Section 482 of the Code of Criminal Procedure on behalf of the Central Bureau of Investigation for recalling order dated 4.9.1995 of this Court.

2. By the aforesaid order dated 4.9.95 Chandraswami was granted permission subject to certain conditions to go abroad for a period of six months w.e.f 6.9.95 The need for such permission was as follows:

3. The Central Bureau of Investigation received a complaint from one Lakhubhai Pathak against Chandraswami and K.N Aggarwal. Consequently a case was registered against them as FIR No. RC-1(S)/88.S.I.U (ix) under Section 120-B IPC read with Seection 420 IPC. Chandraswami was arrested. He moved a petition for bail before the concerned Magistrate and was enlarged on bail subject to certain conditions. One of the conditions was that Chandraswami was not to leave the country except with a prior written permission of the Court and a prior intimation to that effect sent to the Central Bureau of Investigation. Thereafter, when Chandraswami wished to go abroad he moved a petition before the Masgistrate for being permitted to go abroad but his prayer was refused. Feeling aggrieved with that order Chandraswami moved to the High Court for permission to go abroad. That petition was registered as Crl.M(M) No. 447/88. It was disposed of on 4.8.88 by H.C Goel, J. and Chandraswami was granted permission to go abroad subject to certain conditions. Thereafter, from time to time that permission was extended subject to certain terms and conditions. The last order of such extention is dated 4.9.95 which is now being sought to be recalled by the C.B.I

4. It may, however, be mentioned that the aforesaid order dated 4.9.95 says that the Central Bureau of Investigation had no objection to the grant of permission to Chandraswami to go abroad for a period of six months subject to such conditions as the Court might impose.

5. The present petition for recall of the aforesaid order dated 4.9.95 is said to have been moved due to change in circumstances and the main grounds precisely are stated in paragraphs 8, 9 and 11 thereof. These grounds may be reproduced as below:

“8. That as per the Order dated 28.12.88 and all other subsequent ordrs of this Hon'ble Court, Sh. Chandraswami was required to furnish the addresses of the places where he stayed during his visits abroad. However, Sh. Chandrawami was not complying with the directions of this Hon'ble Court even after he was served Notice to this effect by the CBI. The matter was accordingly brought to the notice of this Hon'ble Court on 2.3.95 and pursuant to the directions of this Hon'ble Court Sh. Chandraswami filed only the names of the foreign airports visited by him in a bunch for the period Feb.'92 to Feb.'95 before this Hon'ble Court vide letter dtd. 6.3.95 with a copy to the CBI. This was followed by a similar incomplete statement furnished by letter dtd. 27.9.95 by Sh. Chandraswami. Since the information supplied by Sh. Chandraswami was not in accordance with the directions of this Hon'ble Court, a letter dtd. 29.9.95 was sent to Sh. Chandraswami seeking complete and updated statement in compliance of the Order of this Hon'ble Court. Sh. Chandraswami has not responded and complied with the directions of this Hon'ble Court so far.

The above would show that Chandraswami has scant regard for the Law of the land and has been acting in flagrant violation of the Order of this Hon'ble Court obviously for some ulterior motive.

9. That the Central Bureau of Investigation has recently taken up the investigation of a case relating to murder of Sh. L.D Arora, Dy. Collector of Customs, Allahabad, vide RC.10 (S)/95-SIU (V), SC.II wherein the main culprit Mr. Om Prakash Srivastava @ Babloo Srivastava since apprehended by the CBI had made disclosures to the effect that he not only stayed in the Ashram of Sh. Chandraswami but was also fronting for him in his various deals. The allegation of harbouring of criminals etc. by Sh. Chandraswami is being looked into by the CBI, including the verification of statement of said Mr. Babloo, which also extends to other countries. Incidentaly the name of said Mr. W.E Miller had also figured in the disclosure of said Mr. Babloo although as “Erly Mirror” of Canada. The process of verification of the statement of Babloo and the allegation of harbouring of criminals by Mr. Chandraswami is likely to take quite some time as the persons concerned are not readily available and/or not forthcoming to come-forward.

11. That for reasons mentionned in the fore going paras 9 & 10, the investigations by the CBI would be hampered to a great extent in case Sh. Chandraswami is not available for questioning in India. Further he may temper with the evidence available in USA, Canada and other countries, in case he visits abroad. Further it is apprehended that Mr. Chandraswami may not return back to India, after going abroad with a view to avoid and face the ongoing investigations.”

6. The non-applicant Chandraswami has not filed any written reply to this petition.

7. During the course of arguments certain facts were stated by the learned cousnel for the C.B.I which may be reproduced as follows: (1) L.D Arora, Deputy Collector of Customs was murdered on 24.3.93; (2) the investigation of the case was done by the C.B.I and charge sheet was filed in the case on 27.9.94 in the Designated Court at Kanpur; (3) Om Prakash @ Babloo Srivastava after being apprehended made some disclosure statements from 2.9.95 onwards; (4) disclosure statements relate to five matters other than aforesaid RC-1(S)/88.S.I.U(ix) in which Chandraswami has been granted permission to go abroad under the aforesaid orders dated 4.9.95; (5) Chandraswami has been interrogated by the C.B.I on 16.9.95 and 18.9.95 in connection with the aforesaid disclosure statements made by Babloo Srivastava relating to other criminal cases; (6) the Central Bureau of Investigation has not requested the Designated Court at Kanpur for permission to make further investigation in the crime case relating to the murder of L.D Arora, Deputy Collector of Customs, Allahabad; (7) the C.B.I has not so far filed charge sheet in the case relating to the FIR lodged by Lakhubhai Pathak in the year 1988; (8) the passport of Chandraswami is presently with the C.B.I; and (9) the C.B.I does not have any evidence of tampering of evidence by Chandraswami in the cases under reference while in India or abroad.

8. Learned counsel for the C.B.I says that the C.B.I would be needing further six months time for interrogation of Chandraswami in the other five criminal cases including the one relating to murder of L.D Arora. He further submitted that in view of the gravity of the disclosure statements it is very much apprehended that in case Chandraswami is permitted to go abroad he may not come back to this country and therefore the permission granted to the petitioner to go abroad for a period of six months by aforesaid order dated 4.9.95 may be recalled. He further submitted that a person who has scant regard for the Court should not be allowed to enjoy the fruits of the aforesaid order dated 4.9.95 because Chandraswami has not complied with some of the directions of this Court.

9. It may be necessary to mention here the conditions which have been imposed by this Court while granting permission to Chandraswami to go abroad. On perusal of the orders dated 5.9.91 and 4.9.95 it would transpire that Chandraswami had to comply with the conditions imposed on him by orders of this Court dated 4.8.88, 10.10.88, 12.12.88 and 30.1.90 On the basis of the aforesaid orders, amongst the conditions imposed on the petitioner Chandraswami therein, some of them may be summarised as that: (1) he shall join investigation and shall furnish personal security in the sum of Rs. 1 lac. to the satisfaction of the concerned Magistrate; (2) he shall not directly or indirectly tamper with the evidence of the case in any manner; (3) he shall make himself available for investigation at New Delhi provided he is given ten days advance notice to that effect; (4) he shall keep the C.B.I informed of the addresses and places where he goes to slay during his visit to abroad. This shall be done by the petitioner on every ten days basis.

10. Learned counsel for the C.B.I admits that the C.B.I does not have any evidence of tampering of evidence by Chandraswami in the cases under reference while in India or abroad. He, however, says that the C.B.I has apprehension that Chandraswami may now do so. The main thrust of the learned counsel for the C.B.I is regarding violation of one of the aforesaid conditions, that Chandraswami was to inform the Central Bureau of Investigation about the addresses and the places where he goes and stays during his visits abroad on every ten days basis.

11. The learned counsel for the non-applicant Chandraswami admits that there has been some technical lapse on the part of his client in this regard, but he vehemently urges that his client has no disregard for the Court and that he has utmost regard for the Court.

12. He further contends that in spite of the fact that FIR in the case was lodged in 1988, the C.B.I has not been able to file charge sheet till date (i.e 22.11.1995) and still the C.B.I wants his client to remain in bondage and not to move around freely out of the country.

13. So far as the disclosure statements of Babloo Srivastava are concerned the learned counsel for the non-applicant Chandraswami argued that they relate to criminal matters other than the one in which his client has been granted permission to go abroad by the aforesaid order dated 4.9.95 He further says that his client was always available to the C.B.I for interrogation and there has never been a cause of complaint that his client did not obey as per notice of C.B.I for his interrogation. According to him, if his client is to be interrogated in any other criminal matters that has nothing to do with the permission granted to his client under the aforesaid order dated 4.9.95 He further submits that the passport of his client is with the C.B.I and if the C.B.I has to interrogate his client in any other criminal matter on the basis of disclosure statements given by Babloo Srivaslava the C.B.I may proceed in accordance with law and no one prohibits the C.B.I for taking recourse to lawful procedures. According to him, as per admission of the learned counsel for the C.B.I, Chandraswami has been interrogated by the C.B.I on 16.9.95 and 18.9.95 soon after disclosure statements are alleged to have been given by Babloo Srivastava. However, it is submitted by him that whenever his client is required for further investigations his client would be available for the same.

14. After stating the facts of the case, the grounds on which the present petition has been moved and the respective contentions of learned counsel for the parties I would now deal with the merits of this petition.

15. First, I would like to take the pleas of the C.B.I taken in paragraphs 9 and 11 of the petition. It is said that Om Prakash Srivastava @ Babloo Srivastava after being arrested has made disclosure statements to the effect that he not only stayed in the Ashram of Chandraswami but also fronting for him in his various deals and, therefore, the C.B.I is investigating into the allegations whether Chandraswami was harbouring criminals, whether the disclosure statements of Babloo Srivastava are correct and whether one W.E Miller was also an accomplice in the criminal deals. In paragraph 11 of the petition it is urged by the C.B.I that the aforesaid investigations by the C.B.I would be hampered to a great extent in case Chandraswami is not available for questioning in India. The C.B.I also fears that Chandraswami may tamper with the evidence available in U.S.A Canada and other countries in case he visits abroad. Further it is also apprehended that Chandraswami may not return to India after going abroad with a view to avoid the investigations.

16. So far as the fears of the C.B.I are concerned I do not wish to make any comment in this case. To me the point for consideration in this case appears to be whether orders in this criminal case relating to the FIR lodged by Lakhubhai Pathak, should be mixed up with or affected by the other five criminal cases in which Chandraswami may be asked to join the investigation or may likely be found to be involved. In my view, this case or the orders passed therein should not be mixed up with the other five criminal cases.

17. So far as this case is concerned the learned counsel for C.B.I has admitted that the C.B.I as such did not have any evidence of tampering of evidence by Chandraswami while in India or abroad. Had it not been a fact the C.B.I would not have given no objection to the grant of permission to Chandraswami to go abroad when the aforesaid order dated 4.9.95 was passed. It is also not the case of the C.B.I that Chandraswami did not comply with the requisition of the C.B.I for his interrogation in this case. Had it been so they would have objected to the grant of permission to him to go abroad when the matter for grant of such permission was taken up for hearing on 4.9.95 Therefore, in my opinion, when there is nothing on record to show that Chandraswami has avoided interrogation in this case or has tampered with the evidence in this case while in India or abroad I see no reason why the permission granted to Chandraswami to go abroad under the aforesaid order dated 4.9.95 be recalled. If the C.B.I is investigating into other criminal cases in which there may be likelyhood of Chandraswami's involvement, nobody prohibits the C.B.I to interrogate him. The C.B.I may take recourse to the legal process which may be available to it under law for interrogating Chandraswami in those matters. The C.B.I, admittedly, has the passport of Chandraswami with it. Moreover, the permission granted to Chandraswami in this case will not hold good so far as other criminal cases are concerned in which Chandraswami may be wanted. Therefore, in these circumstances and taking into consideration the facts stated by the learned counsel for C.B.I, I am not in agreement with his prayer to recall the aforesaid order dated 4.9.95 For recall of a judicial order there should be cogent reasons in that very case. Hence the prayer is refused.

18. Now I take up paragraph 8 of this petition. In this paragraph it has been stated that this Court had required Chandraswami to furnish the addresses of the places where he stayed during his visits abroad but he was not complying with those directions even after he was served notice by the C.B.I The matter was brought to the notice of this Court on 2.3.95 and pursuant to the directions of this Court Chandraswami filed only the names of the foreign airports visited by him in a bunch for the period from February 1992 to February 1995 before this Court vide communication dated 6.3.95 with copy to the C.B.I According to the C.B.I on 27.9.95 also Chandraswami has given incomplete statement. It is further stated in this paragraph that the above would show that Chandraswami has scant regard for the law of the land and has been acting in flagrant violation of the orders of this Court obviously for some ulterior motives. Learned counsel for the C.B.I vehemently urged before me that when Chandraswami is not complying with the directions of this Court he should not be permitted to go abroad. Aforesaid plea is on the basis of one of the conditions imposed by this Court while granting permission to Chandraswami to go abroad. That condition is reproduced as below:

“He shall keep the C.B.I informed of the addresses and places where he goes to stay during his visit to abroad. This shall be done by the petitioner on every ten days basis.”

19. Learned counsel for Chandraswami admitted that the aforesaid condition has not been followed by Chandraswami in entirely. Why it is so, has not been explained. Strong exception could have been taken by this Court of such default but in view of the admission of the C.B.I that so far Chandraswami has not tampered with the evidence while in India or abroad strict notice is not being taken at this stage. But when the permission to go abroad was subject to certain conditions it was the duty of the petitioner to have complied with those conditions in entirely. Therefore, some order is needed to see that the aforesaid condition is complied with in entirety. Accordingly, it is ordered that Chandraswami shall not avail the permission granted to him under the order dated 4.9.95 till he complies with the aforesaid condition in entirety. He shall furnish complete information to this Court as well as to the CBI before he goes abroad.

20. The petition is disposed of accordingly.