Is Crime Branch playing hide and seek on Digambar’s arrest?

GOANEWS DESK, PANAJI | 29 August 2015 20:50 IST

Will the matter of former chief minister Digambar Kamat’s anticipatory bail reach Supreme Court even before the high court decides on it?

And has the crime branch deliberately created technical grounds, so that Kamat is never arrested?

The whole matter reaching the Supreme Court is inevitable, feel learned lawyers, even if the petition of crime branch is accepted or rejected by the court. 

Is SC inevitable without HC deciding on bail matter?

The Bombay high court at Panaji is expected to deliver its decision next week on the technical issue raised about the petition crime branch of Goa police has filed, challenging CBI court’s order of granting anticipatory bail to Kamat.

Adv Surendra Desai, counsel of Kamat, argued for two days that the crime branch cannot file such a petition, without technically arresting and releasing Kamat.

The high court will hear merits of the case – to grant anticipatory bail to Kamat or not – only after the decision on this technical issue.

“If the petition is allowed, Kamat will challenge it in the Supreme Court and if it is rejected, the crime ‘branch will go to the Supreme Court”, feels Adv Cleofato Almeida Coutinho, Goa’s noted constitutional lawyer.   

Is Crime Branch deliberately saving Digambar?

Adv Radharao Gracias, also a lawyer and political activist, goes a step ahead, claiming that keeping this technical flaw is a deliberate move on the part of the crime branch.

He also cites earlier case in the CBI court, where the crime branch did not record reason of Kamat’s arrest in the case diary, a mandatory provision under section 41-A of CrPC.

 

B P Deshpande, special judge of CBI court, stated clearly that Kamat was granted bail not on merit, but technical ground.

“It’s a collusion between the prosecution (Goa government) and defence (Digambar Kamat)”, claims Adv Gracias, “in order to save the former chief minister from getting arrested.”

He also asks how Crime Branch remembered to record in Alemao’s case diary, but not of Kamat, due to which Alemao was arrested and Kamat was not.

What is 439 (2) and What is 482?

Though Adv Coutinho doesn’t agree with Adv Gracias that it’s deliberate, both of them ask the same question – why move to the high court under section 439 (2) of CrPC?

Both of them, spoken separately, feel that the crime branch should have challenged lower court order to grant anticipatory bail to Kamat, under section 482 of CrPC, if it wanted the high court to decide about the issue.

Section 439 deals with “special powers of the high court or court of session regarding bail.”

Section 439 (2) states as follows:

“A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody.”

It means the high court can decide about the accused, who is first arrested and then released on bail.

Kamat, after granting him anticipatory bail, was not even technically arrested and released.

Precisely raising this technical issue, Kamat’s counsel has raised objection, asking how crime branch petition can be allowed under this section 439 (2).

 

But under Section 482 of CrPC, the high court has overriding powers to decide about any order passed by the lower court.

“Saving of inherent powers of High Court. Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.”

According to Adv Coutinho, high court has powers under this section to quash the order passed by the CBI court, granting anticipatory bail to Kamat.

“Why was Digambar not technically arrested?”

Adv Gracias feels this has been deliberately done when such orders are always challenged under section 482 and not under section 439 (2).

“Why was then Digambar Kamat was not technically arrested and released, if the crime branch wanted to challenge it under section 439 (2)”, he asks.

In the high court, crime branch lawyer Adv Subodh Desai has vehemently justified the action of police to challenge the CBI court order under section 439 (2).

If the high court accepts his contention, Adv Coutinho feels that Digambar Kamat would jump at this opportunity and rush to the Supreme Court, challenging the high court order, even before deciding on his anticipatory bail.

Adv Gracias feels that this technical issue itself may take two years for the Supreme Court to decide.

“By that time, Digambar Kamat may come back as the chief minister”, he says, in his typical satirical style.

And what if the high court accepts the argument of Kamat and rejects the petition, even before it is admitted?

“Well, the crime branch has to take a call.  They may go to the Supreme Court challenging the high court order. Or the second option is to admit their mistake, technically arrest Kamat and release him and then come back to the high court with a fresh petition”, feels Adv Coutinho. 

Drop a comment

Enter The Code Displayed hereRefresh Image


Latest News

Scams