Arvind Shukla vs U.O.I. Thru. C.B.I., A.C.B., ...
2021 Latest Caselaw 11431 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?A.F.R.
 
Court No. - 11
 
Case :- U/S 482/378/407 No. - 5066 of 2021
 
Applicant :- Arvind Shukla
 
Opposite Party :- U.O.I. Thru. C.B.I., A.C.B., Lucknow & Anr.
 
Counsel for Applicant :- Vijay Kumar Bajapai
 
Counsel for Opposite Party :- Anurag Kumar Singh
 

 
Hon'ble Mrs. Sangeeta Chandra,J.

(Oral)

(1) Heard the learned counsel for the parties and perused the record.

(2) This petition has been filed by the petitioner for the following main prayer:-

"For the facts and reasons stated in the accompanying petition supported by Affidavit, it is most respectfully prayed that this Hon'ble Court may kindly be pleased to quash the entire proceedings arising out of FIR No: RC No.0062005A0018/05, dated 30.06.2005U/S 120B,420, IPC & 13(2) r/w 13(1)(d) PC Act 1988 P.S. CBI/ACB Lucknow including the charge-sheet dated 12.12.2007 filed U/S 120B/420/468 and 471 IPC & 13(2) r/w 13(1)(d) PC Act 1988 P.S. CBI/ACB Lucknow including the cognizance/ summoning order dated 17.09.2020 and Non-Bailable Warrant dated 26.11.2021 passed in Criminal Misc, Case No. 530 of 2020, CBI, ACB, Lucknow Vs. S.N. Lal & Others pending before the Court of Additional District & Sessions Judge PC Act / Special Judge C.B.I. Lucknow, so far as it relates to the petitioner."

(3) It has been submitted by the learned counsel for the petitioner that the petitioner had taken a Housing loan on 30.01.2004 which was repaid by him in various installments and a certificate dated 21.06.2018 was issued to him by the Bank that the Housing loan account has been closed on 21.06.2018. A No Dues Certificate had been issued by the Bank to the petitioner, a copy of which has been filed as Annexure-5 to the petition. It has been submitted that on 27.06.2005 the opposite party no.2 wrote a letter to the Superintendent of Police, CBI Anti Corruption Branch, Lucknow for lodging the FIR against Shri S.N. Lal the then Branch Manager, SBI, Mumfordganj, Allahabad, alleging various irregularities committed by him in sanctioning the Housing loan to various borrowers. The petitioner was issued notice on 22.01.2007 directing him to appear in the office and explain his case. The petitioner appeared on 08.02.2007 and thereafter nothing was heard by him of the matter. The petitioner assured that no case against the petitioner being made out, he had been exonerated by the Investigating Agency. The Charge-sheet was however submitted by the CBI on 12.12.2007 implicating the petitioner also alongwith other accused. CBI Court cancelled the Charge-sheet on 05.06.2008. Against the order passed by the learned Special Judge/Anti Corruption Wing, Lucknow, The CBI filed a Criminal Revision No.498/2008 (D) and got the matter remanded back to the learned Trial court to proceed afresh after taking cognizance.

(4) In pursuance of the order passed by this Court on 14.11.2019 the learned Trial Court by its order dated 17.09.2020 took cognizance and summoned the petitioner alongwith other co-accused. The petitioner was never served any summons with regard to the pendency of Criminal Miscellaneous Case No.530/2020 pending in the Court of Additional District & Sessions Judge, PC Act/Special Judge, C.B.I., Lucknow. For the first time, on 16.11.2021 the police personnel visited his house and apprised his wife regarding the pendency of the aforesaid case. After inquiry the petitioner came to know that the learned Trial court had issued non-bailable warrant against him on 26.11.2021.

(5) Hence this petition has been filed challenging the summoning order dated 17.09.2020 and the order issuing non-bailable warrant dated 26.11.2021.

(6) I have heard the learned counsel for the petitioner and counsel for the CBI who says that the summoning order has been issued by the learned Trial Court after this Court had remanded the matter to it on 14.11.2019 and therefore, no interference should be shown in the summoning order by this Court at this stage.

(7) With regard to non-bailable warrant, it has been submitted fairly by the learned counsel for the CBI that it appears that it has been issued to the petitioner only because he did not appear after summoning order for which he says that he had no knowledge earlier.

(8) Learned counsel for the petitioner has placed reliance upon the judgment rendered by the Hon'ble the Supreme Court in Amanpreet Singh Vs. CBI through Director passed in Criminal Appeal No.929/2021 decided on 02.09.2021 reported in 2021 SCC Online 941, where in similar circumstances the Supreme Court has shown interference relying upon the observations made by its in Siddharth Vs. State of U.P. passed in Criminal Appeal No.838/2021, reported in 2021 SCC Online 615. The Supreme Court has referred to observation made by the Delhi High Court in "Court on its own Motion Vs. CBI" reported in (2004) 72 DRJ 629, in Paragraph-26 which has been affirmed by the Court in its order in Paragraph-9. Directions were issued for the Criminal Court in Paragraph-26 of the Delhi High Court judgment which was quoted with approval by the Supreme Court in Paragraph-9 of the report. Such directions are quoted hereinbelow:-

"26. Arrest of a person for less serious or such kinds of offence or offences those can be investigated without arrest by the police cannot be brooked by any civilized society.

Directions for Criminal Courts:

(1) Whenever officer-in-charge of police station or Investigating Agency like CBI files a charge-sheet without arresting the accused during investigation and does not produce the accused in custody as referred in Section 170, Cr.P.C. the Magistrate or the Court empowered to take cognizance or try the accused shall accept the charge-sheet forthwith and proceed according to the procedure laid down in Section 173, Cr.P.C. and exercise the options available to it as discussed in this judgment. In such a case the Magistrate or Court shall invariably issue a process of summons and not warrant of arrest.

(ii) In case the Court or Magistrate exercises the discretion of issuing warrant of arrest at any stage including the stage while taking cognizance of the charge sheet, he or it shall have to record the reasons in writing as contemplated under Section 87, Cr.P.C. that the accused has either been absconding or shall. not obey the summons or has refused to appear despite proof of due service of summons upon him.

(iii) Rejection of an application for exemption from personal appearance on any date of hearing or even at first instance does not amount to non-appearance despite service of summons or absconding or failure to obey summons and the Court in such a case shall not issue warrant of arrest and may either give direction to the accused to appear or issue process of summons.

(iv) That the Court shall on appearance of an accused in a bailable offence release him forthwith on his furnishing a personal bond with or without sureties as per the mandatory provisions of Section 436, Cr.P.C.

(v) The Court shall on appearance of an accused in non-bailable offence who has neither been arrested by the police/Investigating Agency during investigation nor produced in custody as envisaged in Section 170, Cr.P.C. call upon the accused to move a bail application if the accused does not move it on his own and release him on bail as the circumstance of his having not been arrested during investigation or not being produced in custody is itself sufficient to entitle him to be released on bail, Reason is simple. If a person has been at large and free for several years and has not been even arrested during investigation, to send him to jail by refusing bail suddenly, merely because charge-sheet has been filed is against the basic principles governing grant or refusal of bail."

(9) This Court has carefully gone through the judgment rendered by the Hon'ble Supreme Court in Amanpreet Singh Vs. CBI (Supra), the Supreme Court has made observation in Paragraphs-10 and 11 affirming the order of the Delhi High Court and directing that the appellant therein be not arrested. The Paragraphs-10 and 11 of the judgment are being quoted hereinbelow:-

"10. A reading of the aforesaid shows that it is the guiding principle for a Magistrate while exercising powers under Section 170, Cr.P.C. which had been set out. The Magistrate of the Court empowered to take cognizance or try the accused has to accept the charge sheet forthwith and proceed in accordance with the procedure laid down under Section 173, Cr.P.C. It has been rightly observed that in such a case the Magistrate or the Court is required to invariably issue a process of summons and not warrant of arrest. In case he seeks to exercise the discretion of issuing warrants of arrest, he is required to record the reasons as contemplated under Section 87, Cr.P.C. that the accused has either been absconding or shall not obey the summons or has refused to appear despite proof of due service of summons upon him. In fact the observations in Sub-para (ii) above by the High Court are in the nature of caution.

11. In so far as the present case is concerned and the general principles under Section 170 Cr.P.C., the most apposite observations are in sub-para (v) of the High Court judgment in the context of an accused in a non-bailable offence whose custody was not required during the period of investigation. In such a scenario, it is appropriate that the accused is released on bail as the circumstances of his having not been arrested during investigation or not being produced in custody is itself sufficient to entitle him to be released on bail. The rationale has been succinctly set out that if a person has been enlarged and free for many years and has not even been arrested during Investigation, to suddenly direct his arrest and to be incarcerated merely because charge sheet has been filed would be contrary to the governing principles for grant of bail. We could not agree more with this."

The Supreme Court had thereafter directed the learned Trial Court to grant bail to the appellant on the next date on terms and conditions to its satisfaction.

(10) It has been submitted on the basis of such judgment rendered by Hon'ble Supreme Court in Amanpreet Singh that the petitioner has remained completely unaware of the proceedings before the High Court till 16.11.2021, and he was not arrested by the Investigating Agency earlier and only because non-bailable warrant has been issued by the learned Trial Court, he should not now be arrested and sent to jail.

(11) Having considered the arguments raised by the learned counsel for the petitioner and the learned counsel appearing for the CBI, this Court finds that the observation in Amanpreet Singh related to a case where Amanpreet Singh had been given the liberty to continue to appear before the learned Trial Court through virtual mode in the prevailing circumstances of Covid-19 Pandemic, and he had continued to appear thereafter. In the case of the petitioner non-bailable warrant has only been issued by the learned Trial Court because the petitioner has not appeared before the learned Trial Court on the date fixed.

(12) This petition is finally disposed of with a direction to the petitioner to appear before the learned Trial Court through counsel and apply for interim bail which shall be considered by the learned Trial Court and appropriate orders be passed thereon. His regular bail application shall also be considered expeditiously thereafter.

Order Date :- 4.12.2021

PAL