Digambar bailed out as per SC guidelines; also no criminal background

GOANEWS DESK, PANAJI | 19 August 2015 22:46 IST

File photo by Arvind Tengse

Former chief minister Digambar Kamat was granted bail under section 41-A of CrPC, where no satisfying reason was given by the police for his custody and he does not have a criminal background.

Special judge B P Deshpande of the CBI court of Goa however has put conditions on Kamat – not to leave Goa without court’s permission, surrender his passport and cooperate with the police, besides a personal bond Rs one lakh.

The court has however dismissed Kamat’s contention that his arrest was a political vendetta and it was ‘master directing the servant to investigate’ the Louis Berger bribery case.

The crime branch of Goa police wanted to arrest the former CM by charging him for accepting huge amount of bribe from Louis Berger International Inc., the US-based consultancy firm, which is executing JICA-funded water supply and sewerage project in Goa.

The court also  commented on the issues raised by the police – regarding the recovery of missing JICA file, managing a reply regarding the file under RTI and also using his position to influence the government officers.

Judge Deshpande however primarily allowed Kamat to go scot free, without arrest, under the provisions of section 41-A of CrPC, as guided by the Supreme Court.

What is Section 41-A?

“Section 41-A - Notice of appearance before police officer-

{1} the police officer shall, in all cases where arrest of a person is not required under the provisions of sub-section (1) of section 41, issue 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.

{4} where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent court in this behalf, arrest him for the offence mentioned in the notice.”

Did Digambar comply with Sec 41-A?

The court, in its order, stated as under:

“36. In the present matter it is admitted fact that applicant (Kamat) attended office of CID on two occasions i. e. on 29/07/15 and then on 03/08/15 when he was interrogated by the Investigating Officer (IO) and thereafter he was allowed to go.

Thus it is clear that the IO was exercising the powers under Section 41-A of Cr. P. C as by that time there was no credible information or reasonable suspicion exists that the applicant has committed a cognizable offence against the applicant showing his involvement in the crime.

Thus provisions of Clause (3) of Section 41-A comes into play wherein it is mandated that when 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.”

No reason recorded in Police diary

The special judge has also pointed out that the police, as required by law, did not record the reason in the case diary. Following is the observation:

“37. It was, therefore necessary for the IO to record the reasons as to why arrest of such person is required.

Without such reasons being recorded in the Case Dairy, it was not permissible for the IO to arrest such person when he is complying and continues to comply the notice under Section 41-A of CrPC.”

“65. In view of the above discussion, I am of considered opinion that this case comes within the ambit of Section 41 of the Code and since the applicant (Kamat) joined the investigation and continue to do so, it was mandatory for the IO to record the specific reasons of his intention to arrest the applicant in this matter, which are conspicuously absent in the case dairy and thus it violate the dictum laid down by the Apex Court.”

About the missing JICA file

The court observed that the police could recover the missing file even without arresting him:

“44. Thus the contention of the Ld. PP that noting file is required to be recovered from the applicant is in fact possible even without the custody and as laid down by the Apex court and in case such is made out then the person could be taken in custody for the purpose of recovery.

However at present no such case is made out even though applicant was interrogated on two occasions by the IO in the present matter for a considerable period. Therefore such contention of the Ld. PP cannot be accepted at this stage.”

Getting false information under RTI

“45. It was contended strongly by the learned PP that the applicant (Kamat) 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.

46. At this juncture, it is required to note that the statement u/s.161 has no evidential value as compared to the reply/information received under RTI. Even otherwise, it was observed that the applicant is not in power since March 2012 and therefore had no access to the relevant files since then.”

Digambar is respected, not influential

“48. … 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 an 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.”

“63. Applicant has co-operated with the Investigating agency … There is no possibility of

Applicant (Kamat) fleeing from justice since he is a sitting MLA of Margao Constituency.”

No criminal background

“61. Ld. Senior Counsel forcefully argued that there is no criminal background as far as applicant is concerned and pointed that there is false assertion made in the reply by the IO.

He also invited my attention to the decision of the Apex Court in the case of Goa Foundation v/s Union Of India (2014) 6 SCC 590 to show that the report of Justice Shah Commission has been discarded by the Apex Court and no prosecution could be lunched on that basis.

62. At this state prosecution has failed to produce any material to even prima facie show that there is any criminal back ground of the applicant and thus the contention of the Ld. Senior Counsel in this respect has to be accepted.” 

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Previous Comments

Today I read a request from the newspaper (Herald) that all political robbers and their relatives are to be kept in jail.

they deserve the punishment more than the chain snatchers from the streets.

Why is Kamat roaming free is everybody asking including dailies, what is this 'jantar mantar' magic on the judge.?

- John W D'Souza, Margoa - Goa | 25 th August 2015 10:50

 

John W D'Souza, John W D'Souza my Friend !

Do you Honestly think a Goan called Jose has run to UK ?

- Jose Cunha, GOA(UK) | 24 th August 2015 06:50

 

Good Jose, I agree.

Now even the courts are supporting these criminals by leaving them to roam free, why not everybody get bail ? then all the honest Goan can run to UK.

- John W D'Souza, Margoa - Goa | 21 st August 2015 10:43

 

Does anyone believe Digambar Kamat ?

He is the most Arrogant and Corrupt and Poor Miser and Despicable person... Even his cronies will agree !

Can Goans Trust Goa Police ? The Police of GOA.

Digambar Kamat will take Goan Police and others for a long ride...

And Who will bear the cost of all this Tiatr/Drama Am Addmi ( Common Man)

Mitacho Far mar hea soglia montriacher ( salt gun shots on these so called Ministers)

- Jose Cunha, GOA(UK) | 20 th August 2015 07:54

 

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