Durga Prasad Mishra v. Union of India & Another) and batch of cases. The
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No.4422 OF 2023 Shradhanjali Behera …. Petitioner(s) Mr. Asok Mohanty, Senior Advocate, along with Mr. Pranaya Kumar Dash, Advocate -versus- Directorate of Enforcement (ED) …. Opposite Party(s) Mr. Gopal Agrawal, Advocate for the ED CORAM: JUSTICE SIBO SANKAR MISHRA Order No.
Decision
ORDER 29.02.2024 02. 1. Heard learned counsel for the Petitioner and learned counsel for the Opposite Party. 2. The petitioner has invoked the inherent jurisdiction of this Court under Section 482 Cr.P.C. assailing the order dated 20.05.2023 passed by the learned A.D.J.-cum-Special Judge, C.B.I.- I, Special Court (PMLA), Bhubaneswar in Crl. Misc. Case (PMLA) No.10 of 2022, whereby the court below has issued NBW against the petitioner for non-appearance. 3. It appears from the record that the petitioner has applied for grant of anticipatory bail by filing ABLAPL No.15112 of 2022. The coordinate Bench of this Court vide its order dated 17.01.2023 has rejected the said application being infructuous as the complaint Page 1 of 9 under Sections 44 and 45 of the PMLA Act has been filed. The petitioner has also moved repeated application under Section 205 Cr.P.C. which was turned down and the NBW is eventually issued against the petitioner. Hence, the petitioner seeks indulgence of this Court. 4. Mr. Asok Mohanty, learned Senior Counsel for the petitioner submits that the petitioner being a lady is entitled for the relief sought by her and she has been urging before the court below that she would be appearing through Video Conferencing mode. However, her application under Section 205 Cr.P.C. has been rejected arbitrarily. He has relied upon the judgment of the coordinate Bench dated 11.09.2023 passed in CRLMC No.3753 of 2023 (Durga Prasad Mishra v. Union of India & Another) and batch of cases. The petitioners in those batch of cases had sought for the similar relief of quashing of NBW issued by the court below after filing of the complaint under Sections 44 and 45 of PMLA Act. By a detailed judgment, the coordinate Bench inter alia has been pleased to observe as under: “10. Coming to the facts of this case, as has already been discussed, no reason whatsoever was cited by the Court below to direct issuance of NBW. The reasons cited by Mr. Agarwal to justify issuance of NBW such as, gravity of the economic offences etc. have not been referred to by the Court below itself. To such extent therefore, the judgment of the Rajasthan High Court cited by Mr. Agarwal would have no application to the peculiar Page 2 of 9 facts and circumstances obtaining in the present case. On the other hand, the principles laid down in Inder Mohan Goswami (supra) can be conveniently applied. 11. From the foregoing narration of the facts and law involved, this Court is of the view that given the absence of the accused persons and non-taking of the steps on their behalf, the Court below ought to have issued a bailable warrant of arrest since there is nothing on record to suggest that the accused persons have been deliberately avoiding to appear before the Court. The impugned order is law warranting interference. Nevertheless, since the NBW rightly or wrongly has been issued it would be proper for the accused persons to physically surrender before the Court below and move for bail and in such event, they shall be released on bail on such terms and conditions as the Court below may deem fit and proper to impose.” thus rendered unsustainable the eye of in 5. To draw the benefit of the said judgment, Mr. Mohanty, learned Senior Counsel submits that the petitioner had never avoided appearing in the court, rather moved application on genuine grounds seeking exemption or for appearing through Video Conference Mode. Petitioner indeed is entitled to the relief as provided in para-11 of the judgment in Durga Prasad Mishra (supra). 6. Mr. Agarwal, learned counsel appearing for the Enforcement Directorate submits that leniency should not be shown to the petitioner because the petitioner has repeatedly approached the Court of law seeking similar relief but failed on her every attempt. Because of her absence, the court below also could not frame the charges against the accused persons and the trial is Page 3 of 9 unnecessarily getting prolonged. He further submits that the petitioner had earlier approached this Court by filing CRLMC No.1307 of 2023 inter alia challenging the rejection of her application under Section 205 Cr.P.C. The coordinate Bench allowed the petition on 19.04.2023, however, relegated the petitioner to the court below for rehearing of her application under Section 205 Cr.P.C. afresh. The learned trial court heard the application and rejected the same. Against the said rejection order, the petitioner once again approached this Court by filing CRLMC No.2434 of 2023. The coordinate Bench vide its order dated 19.07.2023 refused to give indulgence to the petitioner and rejected the petition. 7. Mr. Agarwal relying upon one judgment of the coordinate Bench passed on 01.03.2023 in ABLAPL No.14928 of 2021, in the matter of Rajat Choudhury v. Union of India submits that there is a difference between arrest and custody. He supply emphasis on paragraphs-12 and 13 of the said judgment which read as under: “12. It may be noted here that Section 438 of Cr.P.C. grants protection against arrest and not of being taken to custody as such. There is a difference between arrest and custody as it has been held that they are not synonymous terms. In the case of Directorate of Enforcement v. Deepak Mahajan, reported in (1994) 3 SCC 440, the Apex Court held as follows; “48. Thus the Code gives power of arrest to a police officer and a not only Page 4 of 9 appearance certain Magistrate but also under circumstances or given situations to private persons. Further, when an accused person appears before a Magistrate or surrenders voluntarily, the Magistrate is empowered to take that accused person into custody and deal with him according to law. Needless to emphasize that the arrest of a person is a condition precedent for taking him into judicial custody thereof. To put it differently, the taking of the person into judicial custody is followed after the arrest of the person concerned by or on the Magistrate surrender. It will be appropriate, at this stage, to note that in every arrest, there is custody but not vice versa and that both the words ‘custody’ and ‘arrest’ are not synonymous terms. Though ‘custody’ may amount certain all circumstances circumstances. If these two terms are interpreted as synonymous, it is nothing but an ultra legalist interpretation which if under all circumstances accepted and adopted, would lead to a startling anomaly consequences, serious resulting vide Roshan Beevi [1984 Cri LJ 134 : (1984) 15 ELT 289 : 1983 MLW (Cri) 289 (Mad)]” in under arrest not but an to in Reference was also made in the case to the observations made in Gurubaksh Singh Sibbia (supra). In paragraphs 51 and 52 reads as follows: “51. This question is in a way answered in Gurbaksh Singh Sibbia v. State of Punjab [(1980) 2 SCC 565 : 1980 SCC (Cri) 465 : (1980) 3 SCR 383] . While examining the scope of Section 438 of the Code in that case, Chandrachud, C.J. speaking for the Constitution Bench held that: ( “The filing of a first information report is not a condition precedent to the exercise of the powers under Section 438. The imminence of a Page 5 of 9 likely arrest founded on a reasonable belief can be shown to exist even if an FIR is not yet filed.” 52. The dictum laid down in that case indicates that the registration of a case and the entries of the case diary are not necessary for entertaining an application for grant of anticipatory bail, but the mere imminence of a likely arrest on a reasonable belief on an accusation of having committed a non-bailable offence, will be sufficient to invoke that provision.” 13. Thus, the question that arises for consideration is, whether in the facts and circumstances of the case narrated hereinbefore it would be correct to hold that the petitioner is faced with imminent arrest so as to invoke the provision under Section 438 of Cr.P.C.. As already stated, the supplementary complaint was lodged way back in the year 2018 not to speak of the prior investigation that commenced in the year 2016. No steps have been taken by the investigating agency to take the petitioner into custody or for custodial interrogation. Therefore, the apprehension of the petitioner of being arrested does not appear to be reasonable at all. The contention that he may be taken into custody upon his appearance before the court below cannot be equated with imminence of arrest as required for exercise of jurisdiction under Section 438 of Cr.P.C. In a way, the petitioner seeks to foreclose the power of the court below to determine on the facts and circumstances placed before it, the question whether it is necessary to take him into custody or not on his appearance. The power of police to arrest a person on its own accord is ordinarily limited to the period of investigation but once charge sheet is submitted, cognizance is taken and summons is issued, police can arrest only upon orders of the Court provided no further investigation is undertaken as per Section 173(8) of Cr.P.C. It would be profitable at this stage to refer to the provision under Section 167 of Cr.P.C., which also speaks about custody of the accused pending investigation, which can either be police custody (for a limited period) or judicial custody as directed by the Court. But once cognizance of the offence is taken, the custody of the accused would be governed by the provisions of Section Page 6 of 9 309 of Cr.P.C., the relevant part of sub-section (2) of which reads as follows: xx xx “309. Power to postpone or adjourn proceedings.— xx (2) If the Court, after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, it considers time as reasonable, and may by a warrant remand the accused if in custody: Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time: xx xx such for xx” Thus, there is a subtle but clear distinction in the custody of the accused during investigation and after taking of cognizance by the Court. So, if pursuant to summons issued by the Court, the accused appears before it, the apprehension of arrest by police no longer survives as he can be apprehended only on order (warrant) of the Court. The provision under Section 438 of Cr.P.C. is never intended to protect the accused from an order passed by the Court directing his custodial detention. In other words, the ‘custodial detention’ that may be ordered by the Court upon appearance by the accused is not akin or synonymous with ‘his arrest’ by the police. Any interpretation otherwise, would run contrary to the statutory procedure required to be followed for enquiry and trial of cases contained under Chapter-XVII of Cr.P.C. The petitioner, as already stated, filed application under Section 205 of Cr.P.C which being rejected he has approached this Court. Filing of the application under Section 205 Cr.P.C. implies, the petitioner voluntarily submitted himself to the jurisdiction of the Court, albeit not physically but lawyer and sought through his dispensation of his personal appearance. Two scenarios were possible - either the application under Section 205 of Cr.P.C. would have been allowed or it would have been rejected. In the instant case, such application was rejected. Had it been allowed also, the applicant had to appear Page 7 of 9 through his lawyer to receive police papers as per Section 207/208 of Cr.P.C. Now that it was rejected he still has to appear personally or through his lawyer for the same purpose as stated above. In either case, he has to seek regular bail from the court, for, the moment he appears or surrenders he will be deemed to be in custody of the court. The court may either grant him bail or remand him to further custody. In either case it would not be arrest by police but detention of the petitioner in custody by order of the Court, which the petitioner wants to thwart at the threshold and which, according to the considered view of this Court, is not permissible in law.” 8. On the basis of the aforementioned, Mr. Agarwal submits that the petition moved by the present petitioner seeking quashing of NBW issued against her by the court below is liable to be dismissed and the petitioner must surrender to the jurisdictional court. 9. Mr. Mohanty, learned Senior Counsel further submits on instruction that his client would be appearing before the court below and seek remedy available to her under law. His client has never attempted to avoid the process of law, rather she seeks limited indulgence of this Court at this stage in the light of observation of this Court in Durga Prasad Mishra (supra). 10. I have taken into consideration the submissions made at the Bar and perused the record. I am of the considered view that this Court need not venture into either the merit of the case or look into the conduct of the petitioner to decide the limited prayer of the petitioner in this case. Since the petitioner is ready and willing to Page 8 of 9 surrender to the jurisdiction of the competent court of law, it would suffice to stay the execution of the warrant issued against the petitioner for a limited period so as to enable her to avail remedy under law. 11. Taking into consideration the facts scenario in toto, I am of the view that the petition deserves merit. Accordingly, execution of the order dated 20.05.2023 passed by the learned A.D.J.-cum- Special Judge, C.B.I.-I, Special Court (PMLA), Bhubaneswar in Crl. Misc. Case (PMLA) No.10 of 2022 is kept in abeyance till 30.03.2024 to enable the petitioner to appear before the court below and seek her remedy under law. In the event the petitioner appears before the court below and moves appropriate application, the same shall be considered in the light of the judgment dated 11.09.2023 passed by the coordinate Bench in CRLMC No.3753 of 2023 as expeditiously as possible. 12. The CRLMC is accordingly disposed of. (S.S. Mishra) Judge Signature Not Verified Digitally Signed Signed by: ASISH KUMAR KAR Designation: ADR-cum-Addl. Principal Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 01-Mar-2024 09:59:58 Page 9 of 9