G.Moorthy v. Central Crime Branch, Team 2

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 14.08.2008CORAMTHE HONOURABLE MR. JUSTICE K.N. BASHACrl.O.P.No.18541 of 2008G.Moorthy .. Petitioner/DefactoComplainantVs.Inspector of Police,Central Crime Branch, Team 2,Egmore, Chennai. .. RespondentPrayer :Criminal Original Petition filed under Section 482 ofCr.P.C. to direct the respondent to execute the non-bailable warrantdated 26.03.2008 issued by the Hon'ble XI Metropolitan Magistrate,Saidapet, Chennai, in Crime No.124 of 2008 and secure the arrest ofthe 2nd accused and pass such further or other orders.For Petitioner: Mr.Habibullah Badsha, SC for M/s.K.Ramesh KumarFor Intervenor: Mr.SeethapathyFor Respondent: Mr.A.Saravanan, Govt. Advocate (Crl. Side)O R D E RThe petitioner has come forward with this petition seeking forthe relief of a direction to the respondent police to execute thenon-bailable warrant dated 26.03.2008 issued by the learned XIMetropolitan Magistrate, Saidapet, Chennai, in Crime No.124 of 2008for securing the arrest of the second accused and pass such otherorders.2. Mr.Habibullah Badsha, learned senior counsel for thepetitioner submitted that the petitioner is the defacto complainantin this case. It is submitted that the complaint is in relation tothe alleged offences of cheating and misappropriation to the tune ofRs.18 Crores. It is submitted that the second accused in this casewas apprehended in Mumbai on 17.03.2008 and enlarged on transit bailby the Court of Sessions, Mumbai, on condition that he shall appear https://hcservices.ecourts.gov.in/hcservices/ before the Magistrate's Court in Chennai on 26.03.2008. The learnedsenior counsel submitted that after obtaining such order from theMumbai Court, the second accused has also preferred a petition foranticipatory bail before this Court and after this Court expressedits disinclination to grant the relief sought for as the petition foranticipatory bail is not maintainable, the petition was withdrawn on01.04.2008 in Crl.O.P.No.6657 of 2008. It is submitted by thelearned senior counsel that even thereafter the second accused hasnot appeared before the Magistrate's Court and on the other hand, thesecond accused has filed another petition for anticipatory bailbefore this Court in Crl.O.P.No.17257 of 2008 and this Courtdismissed the petition by the order dated 07.08.2008. The learnedsenior counsel contended that in spite of issuing the non-bailablewarrant by the learned Magistrate as early as on 26.03.2008, therespondent police has not taken any effective steps to execute thenon-bailable warrant and no action was taken till date. The learnedsenior counsel contended that the conduct of the accused would amountto a clear case of disobedience of the orders passed by the SessionsCourt, Mumbai and this Court and in view of the inaction on the partof the respondent police, the second accused has taken advantage andis siphoned off the misappropriated amount from the petitioner andtampering with the evidence causing hindrance to the investigation.It is further submitted that as a result, the petitioner has been putinto great hardship and irreparable loss and as such the petitionerhas been constrained to approach this Court with the above saidprayer. 3. The learned counsel for the second accused appeared beforethis Court today and submitted that the second accused has filed apetition for recalling the non-bailable warrant before the learnedMagistrate and such petition was dismissed by the learned Magistrateand challenging that order, the petitioner has preferred a revisionbefore this Court and the revision is posted for hearing before thisCourt on Monday, i.e., on 18.08.2008 and therefore, it is submittedby the learned counsel for the second accused that this matter mayalso be posted on Monday, i.e., on 18.08.2008 to hear both thematters together. 4. The learned Government Advocate (Crl. Side), on the otherhand, submitted that the respondent police undertakes to takeeffective steps to execute the non-bailable warrant within a periodof one month.5. I have carefully considered the rival contentions put forwardby either side and also perused the materials available on record andthe earlier orders passed by this Court and the bail order of theSessions Court, Mumbai. https://hcservices.ecourts.gov.in/hcservices/

6. Before proceeding to consider the contentions put forward bythe learned senior counsel for the petitioner and submission of thelearned counsel for the second accused and the learned GovernmentAdvocate (Crl. Side), it is relevant to refer the unusual andunprecedented sequence of events in this case.7. There are three accused in this case and all the threeaccused have been implicated in this case on the allegation ofcheating and misappropriation of funds to the tune of Rs.18 Crores.The main allegation is levelled against the second accused, who issaid to be the king-pin of the alleged transaction. Now the non-bailable warrant is pending against the second accused as issued bythe learned XI Metropolitan Magistrate, Saidapet, Chennai, on26.03.2008. The necessity for the learned Magistrate to issue thenon-bailable warrant against the second accused arises under thefollowing circumstances :(i) The First Information Report was registered in this case bythe respondent police on 07.03.2008 in X.Crime No.124 of 2008 for theoffences under Sections 406, 418 r/w 34 IPC. Thereafter, therespondent police went to Mumbai on 17.03.2008 to arrest the accused,who have been named in the First Information Report. The secondaccused was arrested by the respondent police on 17.03.2008 andthereafter, he was produced before the learned Additional ChiefMetropolitan Magistrate, 9th Court, Bandra, Mumbai, and prayed for thetransit warrant to produce the accused before the jurisdictionalCourt, namely, XI Metropolitan Magistrate, Saidapet, Chennai. Atthat time, the counsel appeared for the second accused objected thetransit custody of remand and also presented a bail application. TheAssistant Public Prosecutor was also present at that time before thelearned Additional Chief Metropolitan Magistrate, 9th Court, Bandra,Mumbai. The learned Additional Chief Metropolitan Magistrate,Mumbai, adjourned the matter to the next day, i.e., on 18.03.2008 anddirected the respondent police to keep the second accused in theircustody by seeking the help of concerned area police station.Meantime on the same day, i.e, on 18.03.2008, the second accusedpreferred a bail petition in Bail Application No.642 of 2008 beforethe Sessions Court, Greater Bombay. The learned Sessions Judge hasalso entertained such petition for bail in spite of the fact that theconcerned second accused has already been arrested and producedbefore the learned Additional Chief Metropolitan Magistrate, 9thCourt, Bondra, Mumbai, and a bail application was also filed by thesecond accused and the learned Additional Chief MetropolitanMagistrate adjourned the matter to the next day i.e, on 18.03.2008.It is pertinent to be noted that the second accused in the bailapplication filed before the Sessions Court, mentioned about filingof bail application before the learned Additional Chief MetropolitanMagistrate, 9th Court, Bandra, Mumbai, and further stated that thesaid application was posted on 18.03.2008, but expressed apprehension https://hcservices.ecourts.gov.in/hcservices/ that he may not get the bail in the Court of the learned AdditionalChief Metropolitan Magistrate, Mumbai. (ii) It is curious to note that while such bail application waspending before the learned Magistrate, the learned Sessions Judge, asstated above, has entertained the bail petition of the second accusedand granted the relief of bail by the order dated 19.03.2008 byimposing a condition that the second accused shall appear before thecompetent Court at Chennai by 26.03.2008 without fail. It is furthermade clear in the order of the Sessions Judge that such bail orderwould be effective till 5.00 p.m. on 26.03.2008. It is seen thateven in the petition for bail, the second accused has specificallyundertaken to appear before the concerned Magistrate Court atChennai. (iii) The second accused having obtained the above said bailorder on condition to appear before the competent Court at Chennai on26.03.2008, instead of appearing before the Magistrate has chosen tofile a petition for anticipatory bail before this Court inCrl.o.P.No.6657 of 2008 and that petition was dismissed as withdrawnafter this Court expressed its disinclination to entertain thepetition on the ground that the anticipatory bail is not maintainablein view of the earlier bail order obtained by the second accused fromthe Sessions Court, Mumbai, on condition to appear before theconcerned Magistrate Court on 26.03.2008 by this Court by the orderdated 01.04.2008. Even after such order passed by this Court, thesecond accused has not chosen to appear before the Magistrate Court,but filed yet another petition for anticipatory bail inCrl.O.P.No.17257 of 2008 and this Court dismissed that petition bythe order dated 07.08.2008 observing as follows : "Prima facie materials are available to substantiatethe misappropriation and that the respondent police haseffected arrest at Mumbai and bail was granted within twodays, with a condition to appear before the XI MetropolitanMagistrate, Saidapet, Chennai, on or before 26.03.2008.The intention of the petitioner was not to obey the orderand that is why he has filed an application for grant ofanticipatory bail before the Court on 24.03.2008 itself.Since the order passed by the court of Sessions, Mumbai hasnot been obeyed, this Court refused to entertain suchapplication as early as on 01.04.2008 itself."8. It is seen that now, as per the submission of his counsel,second accused has filed a petition to recall non-bailable warrantbefore the learned Magistrate and the same was dismissed and againstthat the second accused preferred a revision and the revision isposted on 18.08.2008. The request of the learned counsel for thesecond accused to post even this petition on 18.08.2008 is notjustified in view of the above said factual scenario and the sequence https://hcservices.ecourts.gov.in/hcservices/ of events demonstrating the deliberate conduct of the second accusedby throwing the orders of the Courts to the wind.9. The second accused has no locus standi to intervene in thispetition as the investigation is pending on the basis of thecomplaint preferred by the defacto complainant and thereafter, theFirst Information Report was registered. The accused is entitled toseek remedy as contemplated under law and he has already beenarrested and released on bail by the Sessions Court, Mumbai oncondition to appear before the learned Sessions Judge on 26.03.2008.But the second accused instead of complying with the condition ofbail imposed by the learned Sessions Judge, Mumbai, by appearingbefore the learned Magistrate on 26.03.2008, has deliberatelydefaulted in complying with the condition and chosen to file apetition after petition for the relief of anticipatory bail. Thefact remains that the second accused obtained the interim order ofbail under the guise of undertaking to appear before the learnedMagistrate, but he has chommitted breach of his undertaking. Theabove said sequence of events and the deliberate and willful conductof the accused makes it crystal clear that the second accused isguilty of taking the Court for ride and he has displayed scant regardfor the majesty and rule of law and such conduct of the secondaccused is nothing but playing fraud on the Court. It is relevant torefer the decision of the Hon'ble Apex Court in S.P.ChengalvarayaNaidu (dead) by LRs. v. Jagannath (dead) by LRs. & Ors reported in(1994) 1 SCC 1 in which the Hon'ble Apex Court has held that,"The Courts of law are meant for imparting justicebetween the parties. One who comes to the court, must comewith clean hands. We are constrained to say that moreoften than not, process of the court is being abused.Property-grabbers, tax-evaders, bank-loan-dodgers and otherunscrupulous persons from all walks of life find the court-process as convenient lever to retain the illegal-gainsindefinitely. We have no hesitation to say that a person,who's case is based on falsehood, has no right to approachthe court. He can be summarily thrown out at any stage ofthe litigation."10. It is painful to note that in spite of the learned XIMetropolitan Magistrate has issued non-bailable warrant as early ason 26.03.2008, the respondent police has not raised its little fingerby taking effective steps to execute the non-bailable warrant. Evenafter the dismissal of the earlier anticipatory bail petition by thisCourt as early as on 01.04.2008 in Crl.O.P.No.6657 of 2008, therespondent police has remained as silent spectator. The apprehensionof the petitioner that by taking advantage of the non-execution ofthe non-bailable warrant, the second accused alleged to have siphonedoff the misappropriated amount and tampering with the evidence cannotbe brushed aside lightly. https://hcservices.ecourts.gov.in/hcservices/

11. In view of the lethargic and indifferent attitude of therespondent police in dealing with the non-bailable warrant issued bythe learned Magistrate against the second accused and in order tosecure the ends of justice and to prevent the abuse of process ofCourt, this Court is constrained to direct the Commissioner ofPolice, Greater Chennai, to nominate a competent police official notbelow the rank of Assistant Commissioner of Police and the saidAssistant Commissioner of Police, by taking assistance of Inspectorof Police, is directed to execute the non-bailable warrant within aperiod of fifteen days from the date of receipt of a copy of theorder of this Court.This petition is ordered accordingly.sd/-Asst.Registrar/true copy/Sub Asst.RegistrarggTo1. The XI Metropolitan Magistrate, Saidapet, Chennai.2. The Commissioner of Police (Metro), Egmore, Chennai – 600 008.3. The Inspector of Police, Central Crime Branch, Team 2, Egmore, Chennai.4. The Public Prosecutor, Madras High Court, Madras.+1 cc To Mr.K.Ramesh Kumar, Advocate, SR.45427 Crl.O.P.No.18541 of 2008ssn [co]gkg/18.8