The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No. 2230, 2231,2651 and 3223 of 2023 Applications under Sections 482 of Cr.P.C. CRLMC No. 2230 of 2023 Kishore Chandra Maharathi …. Petitioner --------------- -versus- State of Odisha and Others …. Opp. Parties CRLMC No. 2231 of 2023 Narendra Rout …. Petitioner -versus- State of Odisha and Others …. Opp. Parties CRLMC No. 2651 of 2023 Petitioner Nihar Ranjan Bidhar -versus- State of Odisha and Others Opp. Parties CRLMC No. 3223 of 2023 Petitioner Rajesh Das -versus- State of Odisha and Others Opp. Parties Advocate(s) appeared in thesecases:- For Petitioner
Legal Reasoning
: Mr.R.Sarangi, B.K. Behera & R.C. Pradhan, Advocates. For Opp. Parties : Mr. S.K.Mishra, ( Additional Standing Counsel) Mr. A.K.Nayak, Counsel for the State in (OPID) Advocates __________________________________________________________ Page 1 of 10 CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 11th September, 2023 SASHIKANTA MISHRA, J. All these four applications filed under Section 482 of Cr.P.C. are directed against the same order passed by the Court below and involve identical facts. As such, all were heard together and are being disposed of by this common judgment. 2. The petitioners herein are arrayed as accused persons in G.R. Case No. 821 of 2016 (A) of the Court of Presiding Officer, Designated Court under OPID Act, Berhampur for the alleged commission of offences under Sections 120- B/467/468/471/420 of IPC read with Sections 4/5/6 of Prize Chits and Money Circulation Scheme (Banning) Act & Sections 6 of Odisha Protection of Interests of Depositories (in Financial Establishment) Act 2011. 3. The petitioners are alleged to have incorporated a fake company, namely, Dynamic Asset Management Ltd. and as Page 2 of 10 such, collected huge amount of money from the general public with false assurance to repay the amount with 8 per cent interest per annum along with refund of the entire principal amount of maturity. However, in May 2014, the company closed its office and its functionaries absconded from Berhampur. Basing on a complaint filed by one U.N.Mohanty in the Court of learned S.D.J.M., Berhampur being 1CC Case No. 297 of 2015, learned S.D.J.M. directed registration of the FIR under Section 156(3) of Cr.P.C. As such, Berhampur Town P.S. Case No. 116 of 2016 corresponding to G.R. Case No. 821/2016(A) was registered. Upon completion of the investigation, charge- sheet was submitted by the Investigating Officer on 09.08.2021 keeping the investigation open under Section 173(8) of Cr.P.C. On 26.07.2022, the Investigating Officer prayed for issuance of Non Bailable Warrant of arrest to apprehend the accused persons including the present petitioners on the ground that despite several attempts, he was unable to apprehend them. By order dated 26.07.2022, which is impugned, the Court below allowed the prayer of the Investigating Officer and directed the Page 3 of 10 issuance of NBW/A against the accused persons including the petitioners. 4. Heard Mr. R. Sarangi learned counsel for the petitioners and Mr. S.K.Mishra learned Additional Standing counsel appearing for the State as also Mr. B. Bhuyan learned counsel appearing for the State in OPID matters. 5. Questioning the correctness of the impugned order, Mr. Sarangi would argue that the Court below should not have issued NBW against the petitioners straight away basing on the prayer of the I.O. without first issuing summons followed by bailable warrant, if need be. Mr. Sarangi has referred to the decision of the Apex Court in the Case of Inder Mohan Goswami & Anr vs. State of Uttaranchal & Ors. reported in (2007) 12 SCC 1 in support of his contention. He further argues that the petitioners were present all through in their respective addresses and no attempt was made to arrest them by the I.O. In any case, the petitioners are ready and willing to appear before the Court below and to cooperate in the trial. Page 4 of 10 6. Mr. A.K.Nayak, on the other hand submits that the Investigating Officer committed no illegality in praying for issuance of NBW since the accused persons despite repeated efforts avoided arrest. Mr. Nayak further argues that the offences being grave, no leniency should be shown to the petitioners. 7. Perusal of the charge-sheet reveals that under the heading ‘Status of the accused (suspect)’-‘Not arrested’ is mentioned and under the heading ‘Any special remark’ to include reasons for not charge-sheeting, it is mentioned ‘Absconder to be arrested’. In order to understand the apparent incongruity, this Court directed the IIC of Berhampur Town Police Station to file an affidavit. It is stated that in the preliminary charge-sheet under sl No. 5 it was inadvertently mentioned that the attested was not arrested but in the final charge-sheet, it was mentioned as absconder. In other words, the incongruity is sought to be explained as an act of inadvertence. 8. Be it noted that the final charge-sheet has not been produced before this Court for perusal by either of the Page 5 of 10 parties. Nevertheless, the question is, whether the Court below committed any error or illegality in directing issuance of NBW/A at the first instance. Law is well settled in this regard that unless circumstances so exist to suggest that the accused would not respond to other means undertaken to procure his attendance, a Non- Bailable Warrant of arrest should not be issued. Reference may be had in this context to the ratio decided in Inder Mohan Goswami (Supra). The relevant observations are quoted herein below: “ 47. Before parting with this appeal, we would like to discuss an issue which is of great public importance, i.e., how and when warrants should be issued by the Court? It has come to our notice that in many cases that bailable and non-bailable warrants are issued casually and mechanically. In the instant case, the court without properly comprehending the nature of controversy involved and without exhausting the available trial court issued non-bailable warrants. The remedies disregarded the settled legal position clearly enumerated in the following two cases. 48. In Omwati v.State of UP & Another (2004) 4 SCC 425, this court dealt with a rather unusual matter wherein the High Court firstly issued bailable warrants against the appellant and thereafter by issuing non-bailable warrants put the complainant of the case behind bars without going through the facts of the case. This Court observed that the unfortunate sequel of such unmindful orders has been that the appellant was taken into custody and had to remain in jail for a few days, but without any justification whatsoever. She suffered because facts of the case were not considered in proper perspective before passing the orders. The court also observed that some degree of care is supposed to be taken before issuing warrants. Page 6 of 10 49. In State of U.P. v. Poosu & Another (1976) 3 SCC 1 at para 13 page 5, the Court observed: Whether in the circumstances of the case, the attendance of the accused respondent can be best secured by issuing a bailable warrant or non- bailable warrant, is a matter which rests entirely in the discretion of the court. Although, the discretion is exercised judiciously, it is not possible to computerize and reduce into immutable formulae the diverse considerations on the basis of which this discretion is exercised. Broadly speaking, the court would take into account the various factors such as the nature and seriousness of the offence, the character of the evidence, circumstances peculiar to the accused, possibility of his absconding, larger interest of the public and the State. Personal liberty and the interest of the State 50. Civilized countries have recognized that liberty is the most precious of all the human rights. The American Declaration of Independence 1776, French Declaration of the Rights of Men and the Citizen 1789, Universal Declaration of Human Rights and the International Covenant of Civil and Political Rights 1966 all speak with one voice - liberty is the natural and inalienable right of every human being. Similarly, Article 21 of our Constitution proclaims that no one shall be deprived of his liberty except in accordance with the procedure prescribed by law. 51. The issuance of non-bailable warrants involves interference with personal imprisonment means deprivation of the most precious right of an individual. Therefore, the courts have to be extremely careful before issuing non-bailable warrants. liberty. Arrest and 52. Just as liberty is precious for an individual so is the interest of the society in maintaining law and order. Both are extremely important for the survival of a civilized society. Sometimes in the larger interest of the Public and the State it becomes absolutely imperative to curtail freedom of an individual for a certain period, only then the non-bailable warrants should be issued. When non-bailable warrants should be issued. 53. 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 Page 7 of 10 • • 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 if not placed into custody immediately. 54. 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 be preferred. The warrants either bailable or non-bailable should never be issued without proper scrutiny of facts and complete 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. 55. 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 courts 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 accused is avoiding 56. 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. 57. The Court should try to maintain proper balance between individual liberty and the interest of the public and the State while issuing non-bailable warrant.” Even otherwise, while it may be open to the Investigating Officer to pray for issuance of NBW of arrest against any accused, it is not so for the Magistrate to mechanically grant such prayer inasmuch as he has to apply his judicial mind to the facts and circumstances in order to be satisfied Page 8 of 10 that issuance of NBW is actually necessary. It must be kept in mind that arrest amounts to curtailment of liberty of a person guaranteed under Article 21 of the Constitution of India and therefore, there must be justified reasons for the Magistrate to direct issuance of NBW. As per the scheme of the Code of Criminal Procedure, firstly, a summon is to be issued and if the accused does not respond, a bailable warrant is to be issued. It is only if these steps fail to yield the desired result that the coercive step of issuing a Non Bailable Warrant should be resorted to. Of course, if the Investigating Officer is able to show that he has taken all possible steps to arrest the accused but has failed in doing so, the Magistrate would be justified in accepting his prayer but only after being satisfied as regards the necessity to do so. In the instant case, a perusal of the impugned order simply reveals that on the prayer of the Investigating Officer, the Court below directed issuance of Non Bailable Warrant without recording any reason for doing so. As already stated, a Non Bailable Warrant of arrest is not to be issued on the mere asking but only on justified reasons. In Page 9 of 10 such view of the matter, the impugned order cannot be sustained in the eye of law. 9. For the foregoing reasons therefore, the CRLMC is allowed. The impugned order in so far as it relates to the direction to issue NBW/A against the accused petitioners is hereby quashed. The Court below is directed to issue summons fixing a date for appearance of the accused persons. It goes without saying that if the accused persons fail to abide by the summons so issued, it would be open to the Court below to take further coercive steps to procure their attendance in accordance with law. ..……..………………….. Sashikanta Mishra, Judge Orissa High Court, Cuttack, The 11th September, 2023/Deepak Signature Not Verified Digitally Signed Signed by: DEEPAK PARIDA Reason: Authentication Location: OHC,Cuttack Date: 13-Sep-2023 11:06:18 Page 10 of 10