Orissa High Court
Vijay Kumar Patodia vs Republic Of India on 26 April, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC NO.1690 OF 2023
(An application under Section 482 Cr.P.C. Code of Criminal
Procedure, 1973)
Vijay Kumar Patodia ... Petitioner
-versus-
Republic of India ... Opp. Party
Advocates appeared in the case through hybrid mode:
For Petitioner : Mr. A. Mishra &
J.K. Mahapatra
Advocates
-versus-
For Opposite Party : Mr. Sarthak Nayak,
[Special Counsel, CBI)
--------------------------------------------------------------------------------
CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
26th April, 2023
Sashikanta Mishra, J. The petitioner, in the present application
under Section 482 of Cr.P.C. seeks to challenge the
order dated 16.01.2020 passed by learned Special CJM,
(CBI), Bhubaneswar in S.P.E. No. 2 of 2020 whereby
non bailable warrant was issued against him and the
co-accused persons.
2. The facts of the case, relevant only to decide the
present application is that the petitioner along with the
co-accused persons is facing trial in the aforementioned
case for alleged commission of offences under Sections
120-B/420/467/468/471 of IPC. The said case was
registered on the basis of source information regarding
the involvement of the accused persons in the alleged
offences. Upon completion of investigation, charge sheet
has been submitted keeping the investigation open
under Section 173(8) of Cr.P.C. It is significant to note
that the petitioner was not arrested during
investigation. By order dated 16.01.2020, the Court
below directly issued NBW against the petitioner.
3. Heard Mr. Ashutosh Mishra, learned counsel for
the petitioner and Mr. Sarthak Nayak, learned counsel
for the CBI.
4. Mr. Mishra forcibly argues that the court below
committed patent illegality in directly issuing NBW
again the petitioner despite the fact that he had not
been arrested during investigation. Mr. Mishra has cited
the decision of the Apex Court in the case of Aman
Preet Singh vs. Republic of India (CBI) through the
Director (Criminal Appeal No.929 of 2021, decided on
02.09.2021) to submit that the court below should have
issued bailable warrant at the first instance.
5. Mr. Sarthak Nayak, on the other hand submits
that the court is empowered to either issue non-bailable
or bailable warrant depending on the facts of the case.
In the instant case, taking note of the seriousness of the
offences involved, the court below thought it fit to issue
NBW. According to Mr. Nayak there is nothing wrong in
such order.
6. There is no dispute that while taking cognizance
of the offences, the Magistrate can issue non-bailable
warrant of arrest as contemplated under Section 87 of
Cr. PC. But in such case, the court below is required to
record its reason. In the case of Court on its own
Motion vs. Central Bureau of Investigation (2004) 72
DRJ 629 the Delhi High Court held as follows.:-
"26. xxx xxx xxx xxx
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.
xxx xxx xxx xxx"
7. The above view was approved by the Apex Court
in the case of Aman Preet Singh (supra) to the effect
that the court is required to invariably issue a process
of summons and not warrant of arrest. Further in case,
he seeks to exercise the discretion of issuing warrant of
arrest, he is required to record the reason as
contemplated under Section 87 of 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. The Apex Court also
held that in the context of an accused in a non-bailable
offence whose custody was not required during the
period of investigation it is appropriate that he is
released on bail as the circumstances of his having not
being arrested during investigation or not being
produced in custody is itself sufficient to entitle him to
be released on bail.
8. Keeping the principle of law referred in the
preceding paragraph in perspective, this court finds
from the charge-sheet that the accused was not
arrested during investigation. Obviously the
investigating agency did not consider his custodial
interrogation or his detention necessary. There is no
material whatsoever to show that the accused was
absconding or shall not obey the summons issued by
the Court. The Court below has however, taken note of
the accusations against the accused to be persuaded to
issue NBW instead of summons to the accused. In view
of what has been discussed hereinbefore, such action
cannot be countenanced in law. The impugned order is
therefore, liable to be interfered with.
9. For the foregoing reasons therefore, the CRLMC
is allowed. The impugned order is set aside only to the
extent of quashing the direction to issue NBW against
the accused person. The court below is directed to fix a
date for appearance of the accused petitioner on which
date it shall proceed in accordance with the principles
laid down by the Apex Court in the case of Aman Preet
Singh (supra).
10. The CRLMC is disposed of accordingly.
................................
Sashikanta Mishra,
Judge
Orissa High Court, Cuttack.
The 26th April, 2023/ B.C. Tudu/Sr. Steno
