A. Krishna Reddy vs C.B.I.
2011 Latest Caselaw 3658 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+        Crl. REV.P. No. 290/2011 & Crl.M.A. 7545/2011 (stay)

%                                            Reserved on: 27th July, 2011

                                             Decided on: 2nd August, 2011

A. KRISHNA REDDY                                             ..... Petitioner
                               Through:   Mr. G. Tushar Rao, Mr. P.S. Reddy,
                                          Mr. Atanu Mukherjee, Advs.

                      versus

C.B.I.                                                     ..... Respondents
                               Through:    Mr. Dayan Krishnan, Mr. Gautam
                                           Narayan, Advs.

Coram:

HON'BLE MS. JUSTICE MUKTA GUPTA


1. Whether the Reporters of local papers may          Not Necessary
   be allowed to see the judgment?

2. To be referred to Reporter or not?                 Yes

3. Whether the judgment should be reported            Yes
   in the Digest?

MUKTA GUPTA, J.

1. By this petition the Petitioner seek setting aside of the order dated 15th

June, 2011 as also the order dated 23rd May, 2011 and quashing of initiation of

proceedings under Section 82 Cr.P.C in R.C. No. DAI-2010-A-0044 under

Section 420/467/468/471 IPC read with 120-B IPC and 13 (1) (d) read with13

(2) of Prevention of Corruption Act (in short „PC Act‟).

2. The contention of the learned counsel for the Petitioner is that the

Petitioner was sub-contractor of M/s. Gem International which was itself a

sub-contractor of M/s. Swiss Timing Ltd. (in short „SLT‟). The Petitioner

entered into an agreement with M/s. Gem International on the 29 th June, 2010

for laying of cables and related civil works for the TSR contract for the 17

stadiums. The Petitioner was never into picture when the Organizing

Committee entered into agreement with the STL. The Petitioner entered

belatedly because the work had to be completed in time as it was lagging

behind and due to torrential rains extra work force, materials etc. were

required. Despite the Petitioner neither being named in FIR nor having any

connection with either M/s. STL or M/s. Gem International the premises of

the Petitioner at Hyderabad were raided on 7th February, 2011 and documents

were sought under Section 91 Cr.P.C. which were immediately handed over to

the CBI. The Respondent‟s officers intensively interrogated the Petitioner at

Hyderabad and their queries were satisfactorily answered. On 10th February,

2011 CBI sent a fax message to the office of the Petitioner directing him to

furnish certain more documents and to bring some more witnesses to Delhi.

As per the oral instructions, on 11th February, 2011 the Petitioner appeared

before the CBI officers and was subjected to a gruelling interrogation till late

hours. He was again asked to appear on the 12th February, 2011. When he

again appeared on the 12th February, 2011 at about 8.00 PM, he was asked to

sign a notice purportedly issued under Section 160 Cr.P.C. directing him to

appear on 13th February, 2011. The Petitioner had to leave for Hyderabad in

early hours of 13th February, 2011 as his wife was seriously ill. This

information was given by the Petitioner to the Investigating Officer on fax on

13th February, 2011.

3. Aggrieved by the action of the CBI, the Petitioner filed a writ petition

being W.P. (Crl.) No.241/2011 before this Court seeking quashing of the

abovementioned FIR which is pending adjudication before this Court. On 17th

February, 2011 the Investigating Officer sent another letter by fax asking for

some more documents on 21st February, 2011. Petitioner was unable to

furnish the said documents. He informed the CBI about his inability. On 25 th

February, 2011 the Investigating Officer sent notices to Petitioner by fax to

appear before the Investigating Officer on 2nd March, 2011. However, as the

condition of the Petitioner‟s wife was still very bad, the Petitioner sent a letter

to the Investigating Officer to defer the enquiry dates. On 8 th March, 2011

CBI sent another notice under Section 91 Cr.P.C. to produce some more

documents and to appear personally on the 11 th March, 2011. Since there was

great disturbances at that time due to violent agitation regarding separate

Telengana State and also due to ill-health of the wife of the Petitioner,

Petitioner sent a fax message dated 10th March, 2011 requesting the

postponement of investigation to 25th March, 2011. On 29th March, 2011 the

learned Trial Court issued non-bailable and search warrants against the

Petitioner. On 31st March, 2011 a search was conducted at the residential as

well as office premises of the Petitioner, however, the Petitioner was not

available at that time as he was in Madhya Pradesh.

4. According to the Petitioner, the Petitioner had sufficiently joined the

investigation and submitted all documents. The learned Trial Court erred in

not considering the fact that the Petitioner was not named in FIR and for the

first time he was named as an accused in the charge-sheet filed by the CBI on

20th May, 2011 and, thus, there was no deliberate intention to hide or abscond

from the process of law. Even on 31st March, 2011 the CBI conducted search

at the residential as well as office premises of the Petitioner and it was clearly

disclosed that the Petitioner was at work site at Madhya Pradesh. Reliance is

placed on Jayant Vishnu Thakur Vs. State of Maharashtra (2009) 7 SCC 104

to contend that learned Trial Court failed to appreciate what "abscondence"

meant. It is, thus, prayed that the impugned order be set aside.

5. Learned counsel for the CBI on the other hand contends that the

Petitioner appeared before the CBI only on 11th February, 2011 and 12th

February, 2011. Thereafter, despite notices admittedly received he did not

appear on 13th February, 2011 and left for Hyderabad without informing the

CBI. It is contended that the falsity of the excuses made by the Petitioner was

evident from the fact that on the one hand Petitioner claimed that he was

unable to appear before the Investigating agency on account of Wife‟s illness,

however admittedly on 31st March, 2011 when the CBI team searched the

residential office of the Petitioner, he was not available and was purportedly

in Madhya Pradesh on work. No address or whereabouts of Madhya Pradesh

were furnished. The anticipatory bail application of the Petitioner was

dismissed by the Hon‟ble High Court of Andhra Pradesh on the 28 th March,

2011. The stand of the CBI was clearly spelt out and is recorded in the order.

Thereafter application for issuance of non-bailable warrants was filed on 29th

March, 2011 which was allowed. The report with regard to non-bailable

warrants being unexecuted was filed on 23rd May, 2011 and a proclamation

was issued requiring the presence of the Petitioner on 14th July, 2011. The

Petitioner after 12th February, 2011 evaded the process of investigation and,

thus, there is no infirmity in the order. During investigation clear allegations

have emerged against the Petitioner and the learned Trial Court conscious of

those allegations issued non-bailable warrants. Thus, there is no merit in the

petition and the same be dismissed.

6. I have heard learned counsel for the parties. With regard to non-

appearance pursuant to various notices, it is evident that the Petitioner though

was very much in a position to attend the investigation but deliberately tried to

evade the process of law on one ground or the other. The power of the Court

under Section 73 Cr.P.C. to issue non-bailable warrants against the persons

who are accused of non-bailable offence and are evading arrest is clearly

defined. Despite notices by the CBI the Petitioner refrained to appear before

Investigating Officer. The Petitioner is an accused in this case and because of

his absence the Court was justified in issuing warrants. The Learned Trial

Court examined the reasons given by the Petitioner for his non-appearance

before the Investigating Officer after the 12th February, 2011 and came to the

conclusion that the same were not justified and there was no sufficient

explanation for the Petitioner to leave the station. Though the Petitioner had

sent a fax message on 10th March, 2011 stating that he would appear before

the Investigating Officer on 25th March, 2011, however he did not appear and

when the CBI team searched the residential office of the Petitioner, he was not

available and was purportedly in Madhya Pradesh on work. No address or

whereabouts of place in Madhya Pradesh were furnished. The said fax

message was false and misleading. Non-bailable warrants and search

warrants were issued on 29th March, 2011. The Learned Trial Court also took

into consideration that there was prima facie material on record against the

Petitioner showing his involvement in the conspiracy.

7. Reliance of the Petitioner on Jayant Vishnu Thakur (supra) is

misconceived. The Hon‟ble Supreme Court was dealing with a case where

the accused was being proceeded under Section 299 Cr.P.C. The Hon‟ble

Supreme Court laid down the conditions precedent for recording of the

evidence in absence of an absconding accused. In the said case, the accused

was absconding after he was arrested. In the present case, it is at the stage

where the Petitioner is avoiding investigation/arrest and even non-bailable

warrants are also not being executed against him, thus, the process of the

Court has been issued. The Court is within its right to declare him as a

proclaimed offender. Section 73 Cr.P.C. permits the Magistrate to issue a

warrant even against a person, who is accused of a non-bailable offence and is

avoiding arrest. After issuance of this process if Petitioner still does not

submit to the Court, the Court would be within its jurisdiction to proclaim him

as an absconder under Section 82 Cr.P.C.

8. In Siddharam Satlingappa Mhetre v. State of Maharashtra, 2011 (1)

SCC 694, their lordships have brought forth the plight of large number of

under-trials who are languishing in jail for a long time even for allegedly

committing very minor offences and held that Section 438 Cr.P.C has not been

allowed in its full play. There is no denial to the fact that the liberty of an

individual is precious and so is the society‟s interest in maintaining peace, law

& order. It was thus held that arrest should be the last option and it should be

restricted to those exceptional cases where arresting the accused is imperative

in the facts and circumstances of the case. The Court must carefully examine

the entire available record and the allegations directly attributed to the accused

and that these allegations should be corroborated by other material and

circumstances on record. Applying the law laid down by their lordships, it

may be noted that the learned Trial Court was conscious of the fact that the

notices were given to the Petitioner to join the investigation however he did

not join. The learned Special Judge was further cautious that the investigation

involved unearthing of conspiracy in awarding the tender and the money trail

thereafter.

9. In Inder Mohan Goswami & Anr.v. State of Uttaranchal, 2007 (12)

SCC 1, it has been held as under:-

"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 straitjacket formula for issuance

of warrants but as a general rule, unless an accused is charged with the commission of any 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."

10. From the aforesaid facts it is clear that the investigating agency have

sufficient prima facie evidence against the Petitioner to take further action

against him. Therefore, I am of the opinion that the production of Petitioner

in the present case before the Court is essential and thus, I find no illegality in

the order passed by the learned Special Judge. The petition and application

are dismissed being devoid of merit.

(MUKTA GUPTA) JUDGE AUGUST 02, 2011 'ga'