Ashutosh Kumar vs The Union Of India Through The ...
2021 Latest Caselaw 643 Jhar

                                           1                             Cr. M.P. No.2222 of 2020




                 IN THE HIGH COURT OF JHARKHAND AT RANCHI
                             Cr. M.P. No. 2222 of 2020

      (Against the order dated 25.09.2020 passed by learned Special Judge, CBI,
      Ranchi in connection with FIR No. RC 17(A) of 2016-R-CBI/ACB/RANCHI
      corresponding to Regular CBI Case No. RC 17(A) of 2016-R)

         1. Ashutosh Kumar, Aged about 52 years, S/o Shri Rama Nand Singh,
            R/o HIG 1/19, Dindly Area, Near Sarita Cinema, Adityapur, P.O. &
            P.S.-Adityapur, Dist.-East Singhbhum, Jharkhand
         2. Chaynika Kumari, Aged about 50 years, W/o Ashutosh Kumar, R/o
            HIG 1/19, Dindly Area, Near Sarita Cinema, Adityapur, P.O. & P.S.-
            Adityapur, Dist.-East Singhbhum, Jharkhand
                                                       ....                 Petitioners


                                         Versus


         The Union of India through the Central Bureau of Investigation
                                                 ....           Opposite Party



                                         PRESENT

                 HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

                                               .....

For the Petitioners : Mr. Namit Kumar, Advocate : Ms. Preity Sinha, Advocate For the C.B.I. : Mrs. Nitu Sinha, Advocate .....

By the Court:-

1. Heard the parties through video conferencing.

2. This criminal miscellaneous petition has been filed invoking

the jurisdiction of this Court under Section 482 Cr.P.C. with a prayer to

quash the order dated 25.09.2020 passed by learned Special Judge, CBI,

Ranchi in connection with FIR No. RC 17(A) of 2016-R-

CBI/ACB/RANCHI corresponding to Regular CBI Case No. RC 17(A)

of 2016-R for the offence punishable under Section 109 of Indian Penal

Code and under Section 13 (2) read with Section 13 (1) (e) of Prevention

of Corruption Act, 1988.

3. It is submitted by Mr. Namit Kumar, learned counsel for the

petitioners that the allegation against the petitioners is that the

petitioner no.1 while working and posted at Indo Danish Tool Room

during the period 01.04.2007 to 07.10.2016 amassed assets of

Rs.1,96,97,628/- disproportionate to the known source of his income

which he could not satisfactorily account for and the allegation against

the petitioner no.2 is that she abetted the petitioner no.1 in

accumulation of the assets beyond the known source of his income. It is

submitted by the learned counsel for the petitioners that vide order

dated 19.08.2020, learned trial court found sufficient material on record

for proceeding inter-alia against the petitioners for having committed

offences punishable under Section 109 of Indian Penal Code and under

Section 13 (2) read with Section 13 (1) (e) of Prevention of Corruption

Act, 1988 and accordingly, cognizance for the said offences were taken.

It is further submitted that the case was fixed to 11.09.2020 for

appearance and summons were issued to the accused persons who are

the petitioners before this Court subsequently, summons were served

upon both the petitioners and this fact is not in dispute. It is further

submitted by the learned counsel for the petitioners that the petitioners

filed separate anticipatory bail applications before the trial court on

09.09.2020 and 10.09.2020 respectively and on the prayer of the

petitioners for adjournment on the ground of illness of the learned

counsels, the hearing of the said anticipatory bail applications were

adjourned to 22.09.2020 and both the anticipatory bail applications were

heard on 22.09.2020 but the learned trial court rejected the anticipatory

bail applications. The petitioners thereafter, applied for certified copy of

the rejection order. It is submitted Mr. Namit Kumar, learned counsel

for the petitioners that though in paragraph no.10 of the petition, it has

been mentioned that in the summons received by the petitioners from

the trial court, the date of appearance of the petitioners before the trial

court was mentioned as 25.09.2020 but he fairly submits that he does

not have any copy of the summons with him. It is next submitted by the

learned counsel for the petitioners that as the petitioners applied for the

certified copy of the rejection order of the anticipatory bail application

on 24.09.2020 hence, it cannot be said that they were evading the Court

proceeding but even then vide order dated 25.09.2020 non-bailable

warrant of arrest was issued against the petitioners by the trial court

and the said order dated 25.09.2020 by which non-bailable warrant of

arrest was issued against the petitioners is sought to be quashed in this

petition. It is then submitted by the learned counsel for the petitioners

that the said order of issuing warrant of arrest was passed in a

mechanical manner without applying any judicial mind and without

following the settled position of law.

Learned counsel for the petitioners relied upon the judgment of

Hon'ble Supreme Court of India in the case of Raghuvansh

Dewanchand Bhasin vs. State of Maharastra & Anr. reported in (2012)

9 SCC 791 wherein in the facts of that case, when a complaint case

involving offences punishable under Section 324 of Indian Penal Code

in relation to some incident alleged to have taken place in an Elite Club

of Mumbai and a practising lawyer was the accused in the case and at a

preliminary stage of the said complaint case which was filed against the

practicing Advocate, when the case came up for hearing before

Additional Chief Metropolitan Magistrate, non-bailable warrant of

arrest was straight way issued by the Additional Chief Metropolitan

Magistrate, the Hon'ble Supreme Court of India in paragraph no.12 of

that judgment quoted the observation made by the Hon'ble Supreme

Court of India in the case of Inder Mohan Goswami & Anr. Vs. State

of Uttaranchal & Ors. reported in (2007) 12 SCC 1 of the said judgment

which reads as under:-

"12. In Inder Mohan Goswami v. State of Uttaranchal [(2007) 12 SCC 1 : (2008) 1 SCC (Cri) 259] , a Bench of three learned Judges of this Court cautioned that before issuing non-bailable warrants, the courts should strike a balance between societal interests and personal liberty and exercise its discretion cautiously. Enumerating some of the circumstances which the court should bear in mind while issuing non-bailable warrant, it was observed: (SCC pp. 17-18, paras 53-55)

"53. Non-bailable warrant should be issued to bring a person to court when summons or 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

• 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 accused is avoiding the court's 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."

4. It is then submitted by the learned counsel for the

petitioners that the said order dated 25.09.2020 passed by learned

Special Judge, CBI, Ranchi being bad and not tenable in the eye of

law be dismissed.

5. Mrs. Nitu Sinha, learned counsel appearing for the C.B.I.

on the other hand defended the impugned order dated 25.09.2020

passed by learned Special Judge, CBI, Ranchi in connection with

FIR No. RC 17 (A) of 2016 R-CBI/ACB/RANCHI corresponding

to Regular CBI Case No. RC 17(A) of 2016-R and submits that the

facts of this case is entirely different from the facts of Raghuvansh

Dewanchand Bhasin vs. State of Maharastra & Anr. (supra) as

that was a complaint case involving a minor offence punishable

under Section 324 of the Indian Penal Code and also bailable

offence that too against an Advocate in a trivial occurrence which

took place in an Elite Club of Mumbai whereas the offences

involved in this case is of very serious nature and it is a crime

against the society of amassing disproportionate assets worth

Rs.1,96,97,628/- punishable under the penal provisions of

Prevention of Corruption Act, 1988 and in this case unlike

Raghuvansh Dewanchand Bhasin vs. State of Maharastra &

Anr. (supra) summons were issued and undisputedly summons

were received by the petitioners but admittedly the petitioners did

not appear in the trial court. So the natural course under such

circumstances for the trial court was to issue non-bailable

warrants of arrest and the learned trial court having so done, there

is no illegality in the said order passed by the learned trial court.

Hence, it is submitted that this petition being without any merit

be dismissed.

6. Having heard the submissions made at the Bar and

after going through the materials available in record, this Court is

of the considered view that as rightly submitted by the learned

counsel for the C.B.I., the facts of this case is entirely different

from the case of Raghuvansh Dewanchand Bhasin vs. State of

Maharastra & Anr. (supra) and undisputedly, though the

petitioners were aware that they were to appear in the trial court

by 25.09.2020 still they did not choose to appear before the learned

trial court and by that time the anticipatory bail filed by them was

rejected and only because they have applied for a certified copy

that do not confer any right to them to not appear in the court in

response to the summons issued by the court, when no relief was

given to them either by way of interim order or otherwise in the

anticipatory bail applications.

7. Under such circumstances, undisputedly, the petitioners

having not appeared in the court in response to the summons

even though they have admittedly received it, this Court does not

find any perversity or gross illegality in the impugned order

25.09.2020 passed by learned Special Judge, CBI, Ranchi in

connection with FIR No. RC 17 (A) of 2016 R-CBI/ACB/RANCHI

corresponding to Regular CBI Case No. RC 17(A) of 2016-R.

Accordingly, this Court is of the considered view that the said

order does not warrant any interference by this Court in exercise

of power under Section 482 Cr.P.C.

8. Accordingly, this criminal miscellaneous petition being

without any merit is dismissed.

(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 10th February, 2021 AFR/ Gunjan/-