Orissa High Court
Samshad Alam vs Asst. Director on 22 June, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC NOS.2220 & 2221 OF 2023
(From the order dated 17th April, 2023 passed by learned
A.D.J.-cum-Special Judge, C. B.I., Court No.1, Special Court
(P.M.L.A.), Bhubaneswar in CMC (PMLA) Case No.47 of 2017)
In CRLMC No.2220/2023
Samshad Alam
... Petitioner
-versus-
Asst. Director, E.D. ... Opposite Party
Advocates appeared in the case through hybrid mode:
For Petitioner: Mr.D.Panda, Advocate.
Mr. S. Panda, Advocate
-versus-
For Opp.Party: Mr.Gopal Agrawal,
Advocate
In CRLMC No.2221/2023
Bhupendra Chaturvedi
... Petitioner
-versus-
Asst. Director, E.D. ... Opposite Party
CRLMC Nos.2220 & 2221of 2023 Page 1 of 10
Advocates appeared in the case through hybrid mode:
For Petitioner: Mr.D.Panda, Advocate.
Mr. S. Panda, Advocate
-versus-
For Opp.Party: Mr.Gopal Agrawal,
Advocate
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CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
22.6.2023.
Sashikanta Mishra,J. Both the CRLMs involve the same issue and
similar facts. For convenience, both were heard
together and are disposed by this common order.
2. The Petitioners in the present applications under
Section 482 of Cr.P.C. seek to challenge the order
dated 17th April, 2023 passed by learned Addl. District
Judge-cum-Special Judge, C.B.I. Court-I, Special
Court (P.M.L.A), Bhubaneswar in C.M.C. (PMLA) Case
No.47/2017 whereby the petitions filed by them
seeking time for appearance were rejected and N.B.Ws.
were issued against them.
3. The facts, relevant only for deciding the present
applications are that one Niranjan Sahoo lodged F.I.R.
before the I.I.C. of Sahadevkhunta P.S. alleging
collection of huge amount of money from the public by
M/s. Fine Indisales Private Limited and of
misappropriation thereof. Accordingly, Sahadevkhunta
P.S. Case No.118 dated 17th July, 2009 was registered
under Sections 406/420/468/471/34 of I.P.C. read
with Sections 4,5 and 6 of the Prize Chits and Money
Circulation Schemes (Banning) Act, 1978.
Subsequently, the Crime Branch took over
investigation and Enforcement Directorate registered
an ECIR for investigation under the Prevention of
Money Laundering Act, 2002 (P.M.L.A). Again as per
order passed by this Court, investigation was handed
over to the CBI whereupon R.C. No.2(E) of 2013-Kol
was registered on 1st March, 2013 corresponding to
C.M.C. (PMLA) Case No.47/2017. Upon completion of
investigation charge sheet was submitted. The present
Petitioners are accused persons, who were never
arrested during investigation, and claim to have fully
cooperated with the investigation. Summons were
issued by the Court below vide order dated 3rd April,
2023 fixing 17th April, 2023 for appearance of the
accused persons. On the date fixed the Petitioners
appeared through their lawyers and filed petitions
seeking time. The said petitions were rejected and
N.B.W. was directed to be issued.
4. Heard Mr. D. Panda, learned counsel for the
Petitioners and Mr. Gopal Agrawal, learned counsel
appearing for the EOW.
5. It is forcefully argued by Mr. Panda that the
Court below could not have issued N.B.W. against the
Petitioners at this stage. Further, the fact that the
Petitioners were never arrested during investigation
and had fully cooperated with the investigating agency
was not considered at all. The finding that the accused
persons are intentionally avoiding to appear in the
present case is entirely unjustified.
6. Mr. Gopal Agrawal, on the other hand, argues
that the very fact that the Petitioners did not obey the
summons issued by the Court below and chose to
appear thorough their lawyer as also sought for time,
by itself proves that they are intentionally avoiding to
appear in the present case. According to Mr. Agrawal
therefore, the Court below has rightly issued N.B.W.
7. The facts of the case being as narrated above, it
would be proper to refer to the position of law in this
regard. In the case of Siddharth vs. State of U.P.
and another; reported in 2022 (1) SCC 676, the Apex
Court held that in the normal and ordinary course the
Police should always avoid arresting a person and
sending him to jail if it is possible to complete the
investigation without his arrest and if every kind of
cooperation is provided by the accused to the I.O.. A
perusal of the charge sheet, enclosed as Annexure-2,
to the petition reveals that the Petitioners were never
arrested during investigation though their statements
under Section 50 were recorded on 15th December,
2014 and 16th December, 2014. Thus, the need for
arresting the Petitioners do not appear to have arisen
at any stage.
8. In the case of Inder Mohan Goswami and
another vrs. State of Uttaranchal; reported in
(2007) 12 SCC (1), the Apex Court while discussing the
power of the Court to issue NBW held as under:
"When non-bailable warrants should be
issued Non-bailable warrant should be
issued to bring a person to court when
summons of 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.
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.
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.
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 straight-jacket formula for issuance of
warrants but as a general rule, unless an
accused is charged with the commission of
an 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.
The Court should try to maintain proper
balance between individual liberty and the
interest of the public and the State while
issuing non-bailable warrant."
9. The facts of the case may now be examined on
the touchstone of the principles referred to herein
before.
The Court appears to have issued summons
vide order dated 3rd April, 2023 fixing 17th April, 2023
as the date of appearance of the Petitioners. However,
it was held that N.B.W. shall be issued in case of non-
appearance on the said date. Such a conditional order
was not justified at all. Moreover, it has been held
that the accused persons are intentionally avoiding to
appear in the present case. This is again not
supported by any material on record inasmuch as on
the date fixed that is, 17th April, 2023, the Petitioners
appeared through their lawyer and sought for time.
Obviously this is not akin to willful avoidance. The
Court below could have issued a bailable warrant at
that stage if it was not inclined to grant time or had
any reason to believe that the Petitioners were
avoiding appearance, but directing issuance of
N.B.Ws. straight away cannot at all be held to be
justified in the facts and circumstances of the case. It
is stated that the Petitioners were engaged in
marketing jobs at different places of Raipur and
Mumbai and therefore, could not personally appear.
This is a reasonable explanation for non-appearance,
which ought to have been considered by the Court
below. Even the fact that the Petitioners were never
arrested during investigation and prosecution does
not allege that they had not cooperated with the
investigating agency, does not seem to have been
considered by the Court at all. Therefore, there seems
to be no justified reason to take coercive steps against
the Petitioners for their appearance.
10. For the forgoing reasons therefore, this Court is
strongly persuaded to hold that the impugned order
in so far as it relates to the direction for issuance of
N.B.W. cannot be sustained in the eye or law.
11. In the result, the CRLMCs are allowed. The
impugned order in so far as it relates to issuance of
N.B.W. against the Petitioners is hereby quashed.
The Court below is directed to fix another date for
appearance of the Petitioners.
..................................
(Sashikanta Mishra)
Judge
Ashok Kumar Behera
Signature Not Verified
Digitally Signed
Signed by: ASHOK KUMAR BEHERA
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 22-Jun-2023 17:37:27
