Gujarat High Court
Rahul Ajaykumar Singhal vs A Y Baloch Inspector Of Police on 22 August, 2023
Bench: A.S. Supehia
NEUTRAL CITATION
C/MCA/54/2023 CAV JUDGMENT DATED: 22/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/MISC. CIVIL APPLICATION NO. 54 of 2023
With
R/MISC. CIVIL APPLICATION NO. 1202 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA Sd/-
and
HONOURABLE MR. JUSTICE M. R. MENGDEY Sd/-
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
============================================
RAHUL AJAYKUMAR SINGHAL
Versus
A Y BALOCH INSPECTOR OF POLICE
============================================
Appearance:
MR MANISH GUPTA, MR NEELMANI GUHA, MS HARSHAL GUPTA,
ADVOCATES for MR TIRTH N BHATT(8487) & Mr. A.H. Patel,
Advocates for the Applicants
MR MITESH AMIN, PUBIC PROSECUTOR with
============================================
CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MR. JUSTICE M. R. MENGDEY
Date : 22/08/2023
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)
1. There are two contempt proceedings, one is filed by the
Rahul Ajaykumar Singhal being Misc. Application No.54 of 2023
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C/MCA/54/2023 CAV JUDGMENT DATED: 22/08/2023
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and another is filed by Ashwini Kumar Singhal being Misc. Civil
Application No.1202 of 2023. Both the contempt proceedings
are filed under "Section 10" of the Contempt of Courts Act,
1971, (for short, "the Act") alleging a willful disobedience of
the directions issued by the Supreme Court in the case Arnesh
Kumar Vs. State of Bihar, [(2014) 8 SCC 273] and in the
case of Satender Kumar Antil Vs. CBI & Another, [2022
SCC Online SC 825].
BRIEF FACTS :-
2. A complaint was lodged as C.A. No.243 of 2022 at the
instance of one viz., Mr.Anil Kumar at Economic Cell, Crime
Branch, Surat. Pursuant to the aforesaid complaint, a "samaj
yadi"notice was issued to the applicants to appear before the
D.C.B. Police Station, Economic Cell, Crime Branch, Surat City
within a period of two days.
3. The applicants have filed the instant contempt
proceedings in view of issuance of notice dated 10.12.2022 by
the respondent No.1 asking them to remain present before
him. It is the case of the applicants that the aforesaid notice
dated 10.12.2022 does not refer to any provision of the Code
of Criminal Procedure, 1973 (for short, "the Cr.P.C."), which is
a gross violation of the guidelines / directions issued by the
Supreme Court in the aforementioned cases. It is the case of
the applicants that on receipt of such notice, they had
appeared before the Investigating Officer, D.C.B. Police
Station, Economic Cell on 13.12.2022 and on 21.12.2022 and
replied to the quires raised by the respondent.
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C/MCA/54/2023 CAV JUDGMENT DATED: 22/08/2023
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SUBMISSIONS ON BEHALF OF THE APPLICANTS :-
4. Learned advocate Mr.Manish Gupta, appearing with
Mr.Neelmani Guha, Ms.Harshal Gupta, learned advocates for
learned advocate Mr.Tirth N. Bhatt & learned advocate Mr.A.H.
Patel, for the applicants has submitted that the applicant of
Misc. Civil Application No.54 of 2023 is living peacefully at New
Delhi for the last five years and he has no association /
business relationship with the complainant and hence, it is
difficult to comprehend that as to why and on what ground the
respondent No.1 has issued the notice dated 10.12.2022 to
appear before him. Similar notice dated 10.12.2022 is also
issued to the applicant of Misc. Civil Application No.1202 of
2023. It is submitted that when the notice was issued, there
was no FIR registered against the applicants and hence,
issuance of such notice was not required.
5. Learned advocate Mr.Manish Gupta, has further
submitted that as per the guidelines issued by the Apex Court
in the case of Arnesh Kumar (supra), before any arrest is
made, the police Officer is required to issue notice as per the
provisions of Section 41-A of the Cr.P.C. and since the said
notice is not issued in the prescribed format, it is a gross
violation of the directions issued by the Apex Court in the
aforementioned cases. It is submitted that the applicants are
unnecessarily harassed in view of the complaint filed against
them.
6. Learned advocate Mr.Manish Gupta, has further
submitted that in fact, issuance of notice is prescribed in the
standing order, which is passed by the Director General and
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C/MCA/54/2023 CAV JUDGMENT DATED: 22/08/2023
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Inspector General of Police, Gandhinagar on 08/10-02-2023. It
is submitted that thus, the contempt proceedings are required
to be initiated against the respondent No.1 under the
provisions of "Section 10" of the Act.
SUBMISSIONS ON BEHALF OF THE RESPONDENTS :-
7. Per contra, learned Public Prosecutor Mr.Mitesh Amin,
appearing for the respondents has submitted that the present
applications are ill-conceived since the applicants were called
upon to remain present in view of the complaint dated
03.09.2022 within a period of two days in order to submit their
reply.
8. Learned Public Prosecutor, while referring to the
provisions of Chapter 5 of the Cr.P.C. has submitted that in
fact, the said "samajyadi" is only issued for taking response or
reply of the applicants and the same cannot be in any manner
termed as a notice issued under Section 41A of the Cr.P.C.
9. Learned Public Prosecutor has further submitted that the
applicants did not remain present within a period of two days,
however almost after one month of the issuance of the said
notice, the applicant - Rahul Singhal had remained present on
20.01.2023 for recording his statement and at the relevant
time, the preliminary inquiry was almost completed.
10. Learned Public Prosecutor has further submitted that as
per the allegations in the complaint, the applicant(s) and his
family had conspired and created bogus agreement and have
misappropriated money to the tune of Rs.46,90,00,000/- and
accordingly, the investigation was undertaken. He has further
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submitted that the respondent, who was the inquiry officer,
submitted his inquiry report to the Police Commissioner, Surat
opining the disclosure of cognizable offences punishable under
Sections 406, 409, 120-B and 34 of the IPC.
11. It is submitted that after recording various statements,
ultimately an FIR was registered on 19.02.2023 before the DCB
Police Station, Surat being CR No.11210015230051 of 2023
under the provisions of Sections 406, 409, 120-B and 34 of the
Indian Penal Code, 1860 (for short, "the IPC").
12. Learned Public Prosecutor has further submitted that the
provisions of Section 41 of the Cr.P.C. would not get attracted
in the present case and the same would apply to the offences,
which are punishable for 7 years or below and in the present
case, since the FIR is registered for the offence under Sections
406 and 409 of the IPC, which prescribes for maximum
punishment for 10 years, the alleged offence would not fall
part of under Section 41(1)(b) and hence, the police has power
to arrest without warrant. It is further submitted that ultimately
the applicant - Rahul Ajaykumar Singhal has obtained
anticipatory bail vide order dated 08.02.2023 passed in
Criminal Misc. Application No.400 of 2023 and he is not
arrested, and all other accused are granted the anticipatory
bail. It is submitted that as on today, the matter is still under
investigation and hence, in view of aforesaid fact, it is
submitted that looking to the facts, there is no willful and
deliberate violation of the directions issued by the Apex Court
in the aforementioned cases.
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C/MCA/54/2023 CAV JUDGMENT DATED: 22/08/2023
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13 We have heard the learned advocates appearing for the
respective parties.
CONCLUSION : -
14. It is interesting to note that the present applications are
filed under Section 10 of the Contempt of Courts Act, 1971.
Section 10 of the Act, reads as under : -
"10. Power of High Court to punish contempts of
subordinate courts.--Every High Court shall have and
exercise the same jurisdiction, powers and authority,
in accordance with the same procedure and practice, in
respect of contempts of courts subordinate to it as it
has and exercises in respect of contempts of itself: --
Every High Court shall have and exercise the same
jurisdiction, powers and authority, in accordance with
the same procedure and practice, in respect of
contempts of courts subordinate to it as it has and
exercises in respect of contempts of itself:"
Provided that no High Court shall take cognizance of a
contempt alleged to have been committed in respect of
a court subordinate to it where such contempt is an
offence punishable under the Indian Penal Code (45 of
1860)."
15. A simple reading of the aforesaid provisions of Section 10
of the Act reveals that the same pertains to the exercise of
jurisdiction by High Court by taking cognizance of contempt
committed in respect of the courts subordinate to it. Thus, the
invocation of the provisions of Section 10 of the Act by the
applicants by way of present applications is ill-conceived, as
the applicants are seeking initiation of the Contempt of Courts
Proceedings for the alleged violations of the directions issued
by the Supreme Court in the case of Arnesh Kumar (supra)
as well as in the case of Satender Kumar Antil (supra). On
this ground alone the applications are required to be rejected.
16. The genesis of filing the present applications is
"samajyadi" issued by the respondent No.1 to the applicants.
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C/MCA/54/2023 CAV JUDGMENT DATED: 22/08/2023
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The said "samajyadi" was issued to the applicants on
10.12.2022 by the respondent-authority asking them to remain
present within a period of two days in view of the complaint
lodged as C.A.No.243 of 2022 dated 03.09.2022. Indubitably,
the applicants did not remain present within a period of two
days, however from the contents of the affidavit filed by the
respondent No.1, the applicants remained present on
20.01.2023. Thus, the said notice or "samajyadi" is only issued
or communicated to the applicants to tender their explanation
with regard to the complaint.
17. At this stage, it would be apposite to refer that the
complaint dated 03.09.2022 has been filed by one Anil Kumar
against 8 persons including to the present applicants alleging
that the applicants along with others have conspired and made
bogus agreement and has cheated him and his family
members to the tune of Rs.46,90,00,000/-. The Investigation
Officer thereafter had recorded the statement of various
persons including the Managers of Syndicate Bank, Athwalines
Branch, Surat as well as other persons and he has also
collected necessary details from the income tax department.
The details and particulars are referred in the affidavit filed by
the respondent No.1 dated 24.06.2023.
18. We are not inclined to delve into such details as they
would not be relevant for deciding the present applications.
Ultimately, after aforesaid investigation was undertaken, the
Investigating Officer prepared an inquiry report and submitted
to the Police Commissioner, Surat on 20.01.2023 opining
disclosure of cognizable offence punishable under Sections
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406, 409, 120-B and 34 of the IPC. Thereafter, an FIR was
registered on 19.02.2023 before the DCB Police Station, Surat
against the applicants along with 5 others for the aforesaid
offences. The applicants have been granted anticipatory bails
and are not arrested in connection with the F.I.R It is the case
of the applicants that the provisions of Section 41A of the
Cr.P.C. have not been complied with since the respondent No.1
has not issued any notice as required in such provision. In the
case of Arnesh Kumar (supra) as well as in the case of
Satender Kumar Antil (supra), which refer to the provisions
of Section 41A of the Cr.P.C., of which, the applicants are
alleging having been violated. It is not in dispute that the same
refers to the offences, which are punishable upto imprisonment
of seven years.
19. In the present case, the applicants are facing prosecution
under the provisions of Sections 406 and 409 of the IPC. The
offence under section 409 of IPC prescribes for maximum
imprisonment of 10 years. Thus, the provisions of Section 41(1)
(b) of the Cr.P.C. would not get attracted and the police
authority has the power to arrest without warrant and the
requirement of issuance of notice under the provisions of
Section 41A of the Cr.P.C. will not get attracted. However, the
eventuality of effecting arrest of the applicants has not arisen
since they are granted anticipatory bails. The investigation is
still in progress.
20. It is not in dispute that the office of the Director General
and Inspector General of Police by the Standing order dated
08/10-02-2023 bearing Standing Order No.1 of 2023 in view of
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the directions rendered in Arnesh Kumar (supra) as well as
in the case of Satender Kumar Antil (supra), has prepared
a model format of the notice under Section 41A of the Cr.P.C.
Thus, the State authority i.e. the Director General and
Inspector General of Police has formulated the format of the
notice under Section 41A of the Cr.P.C., which is required to be
issued by the Investigating Agency in view of the registration
of FIR or complaint. Thus, in the considered opinion of this
Court, there is no willful and deliberate violations on behalf of
the respondent No.1 in issuing "samajyadi" dated 10.12.2022
in view of the complaint registered against the applicants and
others for misappropriating the amount of Rs.46,90,00,000/-.
As noted hereinabove, an F.I.R is also registered against the
applicants for the offences punishable under Sections 406,
409, 120-B and Section 34 of the IPC. The offence under
Section 409 of IPC prescribes imprisonment or with maximum
imprisonment of 10 years.
21. In view of the overall facts and circumstances of the
case, the present contempt applications fail and are rejected.
Sd/-
(A. S. SUPEHIA, J)
Sd/-
(M. R. MENGDEY,J)
MAHESH/01
