Durga Prasad Mishra vs Union Of India (Enforcement ...
2023 Latest Caselaw 11043 Ori

        IN THE HIGH COURT OF ORISSA AT CUTTACK
                   CRLMC No. 3753 of 2023,
                   CRLMC No. 3755 of 2023,
                  CRLMC No. 3757 of 2023 &
                   CRLMC No. 3758 of 2023


Applications under Articles 226 & 227 of Constitution of India.
                           ---------------
CRLMC No. 3753 of 2023
Durga Prasad Mishra                          .......       Petitioner

                      - Versus -

Union of India (Enforcement Directorate)
& another                                    .......   Opp. Parties

CRLMC No. 3755 of 2023
Upendra Nath Mishra                          .......       Petitioner

                      - Versus -

Union of India (Enforcement Directorate)
& another                                    .......   Opp. Parties

CRLMC No. 3757 of 2023
Baikuntha Nath Patnaik                       .......       Petitioner

                      - Versus -

Union of India (Enforcement Directorate)
& another                                    .......   Opp. Parties

CRLMC No. 3758 of 2023
Kali Prasad Mishra                           .......       Petitioner
                            - Versus -

Union of India (Enforcement Directorate)
& another                                    .......   Opp. Partie

Advocate(s) appeared in this case:-
_________________________________________________________

   For Petitioners      : Mr. S.C. Mohapatra, Sr. Advocate with

                                                         Page 1 of 12
                                 M/s. Pratik Dash, S. Anuvav, S.C.
                                Nayak, S. Pattanaik & S. Mohapatra.

           For Opp. Parties : Mr. Gopal Agarwal, Advocate for E.D.

      _________________________________________________________
      CORAM:
             JUSTICE SASHIKANTA MISHRA

                                  JUDGMENT

th 11 September, 2023

SASHIKANTA MISHRA, J.

All the four applications filed under Section 482 of

Cr.P.C. are directed against the same order and were hence

heard together and are being disposed of by this common

judgment.

2. All these four petitioners have been arrayed as

accused persons in CMC(PMLA) No. 84 of 2020 in the Court

of learned Sessions Judge, Khurdha at Bhubaneswar which

is a complaint instituted under Section 44 of the Prevention

of Money Laundering Act, 2002 (in short "PML Act") for the

alleged commission of the offence punishable under Section 4

of the said Act. Said case has arisen out of an FIR bearing

No. RC/46/S/2014-KOL dated 05.06.2014 lodged by CBI,

SPE ACB, Kolkata under Section 120-

B/406/420/467/468/471/34 of IPC read with Sections 4,5

and 6 of Prize Chits and Money Circulation (Banning) Act,

1978. It has been alleged that the accused persons entered

into criminal conspiracy and committed criminal breach of

trust, cheating, forgery etc. and invested the proceeds of

crime generated thereby in assets standing in their names,

which is an offence punishable under Section 3 of the PML

Act. By order dated 02.03.2021 the Court below took

cognizance of the offences and issued summons to the

accused persons for their appearance. Pursuant to such

summons the accused persons entered appearance through

counsel. On 26.12.2022 a supplementary complaint was filed

by the Enforcement Directorate against some more accused

persons and cognizance was also taken. In the meantime, the

proceeding was stalled for various reasons including

abstention of work by the lawyers as per resolutions passed

by the local Bar Association. Thereafter, the accused persons

sought for and were granted adjournment to appear. Again

the matter was stalled for some dates because of resolution

passed by the local Bar Association. The present petitioners

sought for time to appear on 05.01.2023, which was allowed,

and again 02.02.2023, which was also allowed. On the next

two dates that is, on 23.02.2023 and 23.03.2023, the

accused persons were absent. On 20.04.2023 no steps were

taken on behalf of the accused persons including the present

petitioners for which the Court below directed issuance of

NBW/A against them. Said order is impugned in the present

applications.

3. Heard Mr. S.C. Mohapatra, learned Senior Counsel

assisted by Mr. Pratik Dash, learned counsel for the

petitioners and Mr. Gopal Agarwal, learned counsel

appearing for the Enforcement Directorate.

4. Learned Senior counsel, Mr. Mohapatra has

forcefully argued that the accused persons being absent on

the date fixed, the Court below ought to have issued a

bailable warrant to procure their attendance instead of

straightaway issuing NBW, since the petitioners were never

arrested during investigation and only summons had been

issued for their appearance. It is further submitted that the

petitioners had engaged a counsel to represent them in the

case but for reasons best known to him he did not take

necessary steps on the date fixed nor informed the next date

of the posting of the case to the petitioners, for which they

remained completely ignorant of the proceedings. Since there

no further communication from such counsel, the petitioners

having come to know about issuance of the NBW as per the

impugned order have engaged a new counsel, for which the

case record was advanced to 01.08.2023. In any event, steps

had been taken earlier on most of the dates on behalf of the

petitioners and therefore, the Court below should not have

taken the drastic step of issuing NBW. Mr. Mohapatra has

relied upon some case laws to buttress his argument which

shall be discussed at the appropriate place.

5. Mr. G. Agarwal, learned counsel appearing for E.D.

on the other hand would argue that the order sheet of the

case would reveal that the Court below had granted enough

liberty to the petitioners to appear but they failed to do so.

Moreover, they did not comply with the summons issued by

the Court below but appeared through counsel, who went on

seeking adjournments for their appearance. Since the

allegations against the petitioners of money laundering are

grave in nature and involve huge amount, the petitioners

should not be shown any leniency. Mr. Agarwal has relied

upon some case laws which will be discussed later.

6. The facts of these cases being as discussed above,

the only question that falls for consideration of this Court is,

the justifiability of the issuance of NBW against the

petitioners by the Court below. As is evident, the petitioners

were not arrested earlier and on a complaint being filed, the

Court below took cognizance of the offence under Section 4 of

PML Act and issued summons to the accused persons

including the present petitioners requiring their attendance.

The petitioners appeared through counsel and sought

adjournments for their physical appearance. It is also

evident, from perusal of the entire order sheet of the case

that the case was adjourned on some occasions on the prayer

made on behalf of the petitioners but the proceedings were

also stalled on most of the dates because of abstention of

work by members of the Bar Association. Be that as it may,

having received the summons, it was obligatory for the

petitioners to physically appear before the Court below in

obedience thereto. On 20.04.2023 neither the petitioners

appeared nor any steps were taken on their behalf for which

the Court below issued NBW.

7. Keeping the above facts in the background, the case

laws cited by the parties may now be seen. In the case of

Inder Mohan Goswami v. State of Uttaranchal, reported in

(2007) 12 SCC 1 it was held as under

"47. Before parting with this appeal, we would like to discuss an issue which is of great public importance i.e. how and when warrants should be issued by the court? It has come to our notice that in many cases bailable and non-bailable warrants are issued casually and mechanically. In the instant case, the court without properly comprehending the nature of controversy involved and without exhausting the available remedies issued non-bailable warrants. The trial court disregarded the settled legal position clearly enumerated in the following two cases.

48. In Omwati v. State of U.P. [(2004) 4 SCC 425 : 2004 SCC (Cri) 1287] this Court dealt with a rather unusual matter wherein the High Court firstly issued bailable warrants against the appellant and thereafter by issuing non-bailable warrants put the complainant of the case behind bars without going through the facts of the case. This Court observed that the unfortunate sequel of such unmindful orders has been that the appellant was taken into custody and had to remain in jail for a few days, but without any justification whatsoever. She suffered because facts of the case were not considered in proper perspective before passing the orders. The Court also observed that some degree of care is supposed to be taken before issuing warrants.

49. In State of U.P. v. Poosu [(1976) 3 SCC 1 : 1976 SCC (Cri) 368] at SCC p. 5, para 13 the Court observed:

"13. ... Whether in the circumstances of the case, the attendance of the accused-respondent can be best secured by issuing a bailable warrant or non-bailable warrant, is a matter which rests entirely in the discretion of the Court. Although, the discretion is exercised judicially, it is not possible to computerise and reduce into immutable formulae the diverse considerations on the basis of which this discretion is

exercised. Broadly speaking, the court would take into account the various factors such as,

the nature and seriousness of the offence, the character of the evidence, circumstances peculiar to the accused, possibility of his absconding, larger interest of the public and State. [ See State v. Capt. Jagjit Singh, AIR 1962 SC 253 at p. 255, para 3.] "

Personal liberty and the interest of the State

50. Civilised countries have recognised that liberty is the most precious of all the human rights. The American Declaration of Independence, 1776, French Declaration of the Rights of Men and the Citizen, 1789, Universal Declaration of Human Rights and the International Covenant of Civil and Political Rights, 1966 all speak with one voice--liberty is the natural and inalienable right of every human being. Similarly, Article 21 of our Constitution proclaims that no one shall be deprived of his liberty except in accordance with procedure prescribed by law.

51. The issuance of non-bailable warrants involves interference with personal liberty. Arrest and imprisonment means deprivation of the most precious right of an individual. Therefore, the courts have to be extremely careful before issuing non-bailable warrants.

52. Just as liberty is precious for an individual so is the interest of the society in maintaining law and order. Both are extremely important for the survival of a civilised society. Sometimes in the larger interest of the public and the State it becomes absolutely imperative to curtail freedom of an individual for a certain period, only then the non-bailable warrants should be issued.

When non-bailable warrants should be issued

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.

56. 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 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."

8. The observations made in Inder Mohan Goswami

(Supra) were again reiterated by the Supreme Court in the

case of Vikas v. State of Rajasthan, reported in 2013 AIR

SCW 6256. Thus the position that emerges is, it is not proper

for the Court to issue NBW at the first instance if a summons

or bailable warrant is likely to produce the desired result. The

drastic step of issuing NBW seeking to curb the liberty of the

accused thereby need not be resorted to. Nothing is

forthcoming in the impugned order as to why the Court below

felt persuaded to issue NBW straightaway without even

considering issuance of a bailable warrant. In fact, no reason

whatsoever has been cited in the impugned order which

makes it all the more vulnerable.

9. Mr. Agarwal has relied upon a decision of the High

Court of Rajasthan in the case of Shyam Sunder Singhvi v.

Union of India, reported in 2020 SCC OnLine Raj 1981,

wherein the Court taking note of the gravity of the offence of

money laundering did not feel persuaded to interfere with the

order issuing NBW by the trial Court relying upon

observations made by the Apex Court in the case of Y.S.

Jagan Mohan Reddy v. CBI, reported in (2013) 7 SCC 439

and the case of State of Gujarat v. Mohanlal Jitamalji

Porwal, (1987) 2 SCC 364, wherein it was basically held that

economic offences should be dealt with seriously and

considered as grave offences and therefore refused to

interfere with the order issuing NBW. The accused moved the

Supreme Court against such judgment in SLP (Crl.) No.

792/2020, which came to be dismissed. Before proceeding

further it would relevant to note that while dismissing the

SLP the Supreme Court has not specifically referred to the

ratio decided in Inder Mohan Goswami (Supra) or overruled

the same. It was a in limine dismissal and therefore, the point

of law involved is open.

10. Coming to the facts of this case, as has already been

discussed, no reason whatsoever was cited by the Court

below to direct issuance of NBW. The reasons cited by Mr.

Agarwal to justify issuance of NBW such as, gravity of the

economic offences etc. have not been referred to by the Court

below itself. To such extent therefore, the judgment of the

Rajasthan High Court cited by Mr. Agarwal would have no

application to the peculiar facts and circumstances obtaining

in the present case. On the other hand, the principles laid

down in Inder Mohan Goswami (supra) can be conveniently

applied.

11. From the foregoing narration of the facts and law

involved, this Court is of the view that given the absence of

the accused persons and non-taking of the steps on their

behalf, the Court below ought to have issued a bailable

warrant of arrest since there is nothing on record to suggest

that the accused persons have been deliberately avoiding to

appear before the Court. The impugned order is thus

rendered unsustainable in the eye of law warranting

interference. Nevertheless, since the NBW rightly or wrongly

has been issued it would be proper for the accused persons

to physically surrender before the Court below and move for

bail and in such event, they shall be released on bail on such

terms and conditions as the Court below may deem fit and

proper to impose.

12. The CRLMCs are accordingly allowed.

.................................

Sashikanta Mishra, Judge

Orissa High Court, Cuttack.

The 11th September, 2023/ A.K. Rana, P.A.

Signature Not Verified Digitally Signed

Designation: Personal Assistant Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 11-Sep-2023 19:10:50