The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMC NOS.2220 & 2221 OF 2023 (From the order dated 17th April, 2023 passed by learned A.D.J.-cum-Special Judge, C. B.I., Court No.1, Special Court (P.M.L.A.), Bhubaneswar in CMC (PMLA) Case No.47 of 2017) In CRLMC No.2220/2023 Samshad Alam … Petitioner -versus- Asst. Director, E.D. … Opposite Party Advocates appeared in the case through hybrid mode: For Petitioner: Mr.D.Panda, Advocate. Mr. S. Panda, Advocate -versus- For Opp.Party: Mr.Gopal Agrawal, Advocate In CRLMC No.2221/2023 Bhupendra Chaturvedi … Petitioner -versus- Asst. Director, E.D. … Opposite Party CRLMC Nos.2220 & 2221of 2023 Page 1 of 10 Advocates appeared in the case through hybrid mode:
Legal Reasoning
For Petitioner: Mr.D.Panda, Advocate. Mr. S. Panda, Advocate -versus- For Opp.Party: Mr.Gopal Agrawal, Advocate --------------------------------------------------------------------------- CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 22.6.2023. Sashikanta Mishra,J. Both the CRLMs involve the same issue and similar facts. For convenience, both were heard together and are disposed by this common order. 2. The Petitioners in the present applications under Section 482 of Cr.P.C. seek to challenge the order dated 17th April, 2023 passed by learned Addl. District Judge-cum-Special Judge, C.B.I. Court-I, Special Court (P.M.L.A), Bhubaneswar in C.M.C. (PMLA) Case No.47/2017 whereby the petitions filed by them CRLMC Nos.2220 & 2221of 2023 Page 2 of 10 seeking time for appearance were rejected and N.B.Ws. were issued against them. 3. The facts, relevant only for deciding the present applications are that one Niranjan Sahoo lodged F.I.R. before the I.I.C. of Sahadevkhunta P.S. alleging collection of huge amount of money from the public by M/s. Fine Indisales Private Limited and of misappropriation thereof. Accordingly, Sahadevkhunta P.S. Case No.118 dated 17th July, 2009 was registered under Sections 406/420/468/471/34 of I.P.C. read with Sections 4,5 and 6 of the Prize Chits and Money Circulation Schemes (Banning) Act, 1978. Subsequently, the Crime Branch took over investigation and Enforcement Directorate registered an ECIR for investigation under the Prevention of Money Laundering Act, 2002 (P.M.L.A). Again as per order passed by this Court, investigation was handed over to the CBI whereupon R.C. No.2(E) of 2013-Kol was registered on 1st March, 2013 corresponding to C.M.C. (PMLA) Case No.47/2017. Upon completion of CRLMC Nos.2220 & 2221of 2023 Page 3 of 10 investigation charge sheet was submitted. The present Petitioners are accused persons, who were never arrested during investigation, and claim to have fully cooperated with the investigation. Summons were issued by the Court below vide order dated 3rd April, 2023 fixing 17th April, 2023 for appearance of the accused persons. On the date fixed the Petitioners appeared through their lawyers and filed petitions seeking time. The said petitions were rejected and N.B.W. was directed to be issued. 4. Heard Mr. D. Panda, learned counsel for the Petitioners and Mr. Gopal Agrawal, learned counsel appearing for the EOW. 5. It is forcefully argued by Mr. Panda that the Court below could not have issued N.B.W. against the Petitioners at this stage. Further, the fact that the Petitioners were never arrested during investigation and had fully cooperated with the investigating agency was not considered at all. The finding that the accused CRLMC Nos.2220 & 2221of 2023 Page 4 of 10 persons are intentionally avoiding to appear in the present case is entirely unjustified. 6. Mr. Gopal Agrawal, on the other hand, argues that the very fact that the Petitioners did not obey the summons issued by the Court below and chose to appear thorough their lawyer as also sought for time, by itself proves that they are intentionally avoiding to appear in the present case. According to Mr. Agrawal therefore, the Court below has rightly issued N.B.W. 7. The facts of the case being as narrated above, it would be proper to refer to the position of law in this regard. In the case of Siddharth vs. State of U.P. and another; reported in 2022 (1) SCC 676, the Apex Court held that in the normal and ordinary course the Police should always avoid arresting a person and sending him to jail if it is possible to complete the investigation without his arrest and if every kind of cooperation is provided by the accused to the I.O.. A perusal of the charge sheet, enclosed as Annexure-2, to the petition reveals that the Petitioners were never CRLMC Nos.2220 & 2221of 2023 Page 5 of 10 arrested during investigation though their statements under Section 50 were recorded on 15th December, 2014 and 16th December, 2014. Thus, the need for arresting the Petitioners do not appear to have arisen at any stage. 8. In the case of Inder Mohan Goswami and another vrs. State of Uttaranchal; reported in (2007) 12 SCC (1), the Apex Court while discussing the power of the Court to issue NBW held as under: “When non-bailable warrants should be issued Non-bailable warrant should be issued to bring a person to court when summons of bailable warrants would be unlikely to have the desired result. This could be when: * it is reasonable to believe that the person will not voluntarily appear in court; or * the police authorities are unable to find the person to serve him with a summon; or * it is considered that the person could harm someone custody immediately. if not placed into As far as possible, if the court is of the opinion that a summon will suffice in getting the appearance of the accused in the court, the summon or the bailable warrants should CRLMC Nos.2220 & 2221of 2023 Page 6 of 10 be preferred. The warrants either bailable or non-bailable should never be issued without facts and complete proper scrutiny of application of mind, due to the extremely serious consequences and ramifications which ensue on issuance of warrants. The court must very carefully examine whether the Criminal Complaint or FIR has not been filed with an oblique motive. In complaint cases, at the first instance, the court should direct serving of the summons along with the copy of the complaint. If the accused seem to be avoiding the summons, the court, in the second instance should issue bailable- warrant. In the third instance, when the court is fully satisfied that the accused is avoiding the court s proceeding intentionally, the process of issuance of the non-bailable warrant should be resorted to. Personal liberty is paramount, therefore, we caution courts at the first and second instance to refrain from issuing non-bailable warrants. The power being discretionary must be exercised judiciously with extreme care and caution. The court should properly balance both personal liberty and societal interest before issuing warrants. There cannot be any straight-jacket formula for issuance of warrants but as a general rule, unless an accused is charged with the commission of an offence of a heinous crime and it is feared that he is likely to tamper or destroy the evidence or is likely to evade the process of law, issuance of non-bailable warrants should be avoided. The Court should try to maintain proper balance between individual liberty and the CRLMC Nos.2220 & 2221of 2023 Page 7 of 10 interest of the public and the State while issuing non-bailable warrant.” 9. The facts of the case may now be examined on the touchstone of the principles referred to herein before. The Court appears to have issued summons vide order dated 3rd April, 2023 fixing 17th April, 2023 as the date of appearance of the Petitioners. However, it was held that N.B.W. shall be issued in case of non- appearance on the said date. Such a conditional order was not justified at all. Moreover, it has been held that the accused persons are intentionally avoiding to appear in the present case. This is again not supported by any material on record inasmuch as on the date fixed that is, 17th April, 2023, the Petitioners appeared through their lawyer and sought for time. Obviously this is not akin to willful avoidance. The Court below could have issued a bailable warrant at that stage if it was not inclined to grant time or had CRLMC Nos.2220 & 2221of 2023 Page 8 of 10 any reason to believe that the Petitioners were avoiding appearance, but directing issuance of N.B.Ws. straight away cannot at all be held to be justified in the facts and circumstances of the case. It is stated that the Petitioners were engaged in marketing jobs at different places of Raipur and Mumbai and therefore, could not personally appear. This is a reasonable explanation for non-appearance, which ought to have been considered by the Court below. Even the fact that the Petitioners were never arrested during investigation and prosecution does not allege that they had not cooperated with the investigating agency, does not seem to have been considered by the Court at all. Therefore, there seems to be no justified reason to take coercive steps against the Petitioners for their appearance. 10. For the forgoing reasons therefore, this Court is strongly persuaded to hold that the impugned order in so far as it relates to the direction for issuance of N.B.W. cannot be sustained in the eye or law. CRLMC Nos.2220 & 2221of 2023 Page 9 of 10 11. In the result, the CRLMCs are allowed. The impugned order in so far as it relates to issuance of N.B.W. against the Petitioners is hereby quashed. The Court below is directed to fix another date for appearance of the Petitioners. …………….…….……….. (Sashikanta Mishra) Judge Ashok Kumar Behera Signature Not Verified Digitally Signed Signed by: ASHOK KUMAR BEHERA Reason: Authentication Location: High Court of Orissa, Cuttack Date: 22-Jun-2023 17:37:27 CRLMC Nos.2220 & 2221of 2023 Page 10 of 10