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Jharkhand High Court · body

2010 DIGILAW 200 (JHR)

Manoj Kumar Punamiya v. Director of Enforcement

2010-02-03

R.R.PRASAD

body2010
Order A complaint was lodged before the Court of Vigilance Judge-cum-1st Additional Judicial Commissioner, Ranchi against the then Chief Minister and the Ministers as well as some other accused persons alleging therein about the commission of the offences under Sections 409, 420, 423, 424, 465 and 1208 of the Indian Penal Code and also under Sections 7, 10, 11 and 13 of the Prevention of Corruption Act. 2. Learned Vigilance Judge on receiving the said complaint, forwarded it to the Vigilance Department, Ranchi for its institution and investigation. Thereupon, vigilance case was registered against the accused persons named in the complaint petition. Subsequently, on the basis of the allegations made in the vigilance case, Enforcement Directorate lodged Enforcement Case Information Report (ECIR) against Madhu Koda and other Ministers and also some other accused persons alleging therein that there has been reasons to believe from the fact disclosed in the vigilance case that the accused persons by hatching criminal conspiracy have acquired huge assets both in India and outside India by indulging themselves in criminal act under the Indian Penal Code and also under the Prevention of Corruption Act and as such, prima facie, materials are there to form an opinion that the offence of money laundering has been committed which is punishable under Section 4 of the Prevention of Money Laundering Act, 2002 (hereinafter referred to as 'the Act'). 3. In course of investigation, Assistant Director, Directorate of Enforcement, respondent no. 2, issued a. summon to this petitioner on 10.11.2009 directing petitioner to appear before the Directorate on 18.11.2009 alongwith the documents mentioned therein. Pursuant to the notice, the petitioner immediately replied with and also sent the documents. Thereafter the respondent no. 2 again issued, summons on 30.11.2009 directing the petitioner to be present and to produce documents. Again the petitioner responded immediately and, sent a reply annexing therewith all the documents which were required. Pursuant to the notice, the petitioner immediately replied with and also sent the documents. Thereafter the respondent no. 2 again issued, summons on 30.11.2009 directing the petitioner to be present and to produce documents. Again the petitioner responded immediately and, sent a reply annexing therewith all the documents which were required. Subsequently, the petitioner was surprised to know that warrant of arrest has been ordered to be issued against him by the 1st Additional Judicial Commissioner, Ranchi on an application filed by the Investigating Agency to the effect that sufficient evidence has been collected showing the involvement of .the petitioner and others 'of commission of the offence under the Prevention of Money Laundering Act with further averment that he was summoned for more than one occasions for making statement but he avoided, though he was required for the purpose of recording the statement as well as for the purpose of locating trail of proceeds of crime. 4. Being aggrieved with the said order, this writ application has been filed wherein prayer has been made to quash the order dated 18.12.2009 passed by the 1st Additional Judicial Commissioner, Ranchi. 5. Mr. B.P. Pandey, learned Senior Counsel appearing for the petitioner submits that from the summons issued against the petitioner by the Assistant Director, Enforcement Directorate, respondent no. 2, it would appear that he was required to give his statement as witness and whenever summon was received, it was responded immediately by giving reply to the information sought to the best of his knowledge and even the said documents were submitted which were asked to be produced, but in spite of that, the Investigating Officer by misleading the court got the warrant of arrest issued against the petitioner by stating that the petitioner has been absconding but, in fact, the Investigating Officer never came to the business premises of the petitioner at Mumbai for taking his statement or for executing warrant of arrest issued in terms of Section 50 of the Act and as such, there was no cogent material to the effect that the petitioner is evading arrest and hence, warrant of arrest issued against the petitioner in terms of Section 73(1) of the Code of Criminal Procedure is quite illegal and hence, the order under which warrant of arrest was issued is fit to be set aside. 6. 6. Learned counsel further submits that from the substance of the order under which warrant of arrest was issued, it would appear that the learned court below on being convinced by the submission made on behalf of the Investigating Officer that his presence is required for the purpose of. recording the statement for locating trail of proceed of the crime issued warrant of arrest which is illegal as no warrant of arrest could be issued only for helping and assisting the prosecution/police in investigation which proposition of law has been laid down by the Hon'ble Supreme Court, keeping in view the provision as enshrined under Section 73(1) of the Code of Criminal Procedure in a case of State through C.B.I. vs. Daud Ibrahim Kaskar ( AIR 1997 SC 2494 ). 7. It was further pointed out that following the said decision of the Hon'ble Supreme Court, the Patna High Court in a case of Nalini Kant Agrawal vs. State of Bihar and Others [ 2003(1) PLJR 350 ] and also in a case of Krishna Murari Yadav vs. State of Bihar [ 2005(3) PLJR 746 ] quashed the warrant of arrest issued under Section 73 of the Code of Criminal Procedure when it was found that summon had never been issued in consonance with the said provision. Therefore, warrant of arrest issued against the petitioner not being in consonance with the provision of Section 73 of the Code of Criminal Procedure is fit to be set aside. 8. Learned counsel appearing for the Enforcement Directorate submits that at number of occasions, the petitioner was asked to appear before the Investigating Officer for giving statement but the petitioner did not present himself before the authority purposely to avoid making his statement before the Investigating Officer. Subsequently, the Investigating Officer on receiving certain information came to know that he is not available at his place and has gone underground. Subsequently, the Investigating Officer on receiving certain information came to know that he is not available at his place and has gone underground. Thereafter the Investigating Officer after collecting the material did find involvement of the petitioner in the commission of offence under the Money Laundering Act and then approached to the court for issuance of the warrant of arrest and the court being satisfied with the material showing involvement of the petitioner in the offence under the Prevention of Money Laundering Act and that he is evading arrest, issued the warrant of arrest which is absolutely in consonance with the provision of Section 73 of the Code of Criminal Procedure and hence, it never warrants any interference and as such, this application is fit to be dismissed. 9. In the context of the submission advanced on behalf of the parties, the provision of Section 73 of the Code of Criminal Procedure gets attracted which reads as under:- 73. Warrant may be directed to any person.-(1) The Chief Judicial Magistrate or a Magistrate of the first class may direct a warrant to any person within his local jurisdiction for the arrest of any escaped convict, proclaimed offender or of any person who is accused of a non-bailable offence, and is evading arrest. (2) Such person shall acknowledge in writing the receipt of the warrant, and shall execute it if the person for whose arrest it was issued, is in, or enters on, any land or other property under his charge. (3) When the person against whom such warrant is issued is arrested, he shall be made over with the warrant to the nearest police officer, who shall cause him to be taken before a Magistrate having jurisdiction in the case, unless security is taken under Section 71. 10. From bare perusal of the section it is manifest that it confers a power upon the Magistrate to issue warrant for arrest of three classes of persons, namely, (i) escaped convict, (ii) a proclaimed offender, and (iii) a person who is accused of a non-bailable offence and is evading arrest. 11. 10. From bare perusal of the section it is manifest that it confers a power upon the Magistrate to issue warrant for arrest of three classes of persons, namely, (i) escaped convict, (ii) a proclaimed offender, and (iii) a person who is accused of a non-bailable offence and is evading arrest. 11. Their Lordships in a case of State through C.B.I. vs. Daud Ibrahim Kaskar (supra) having taken into consideration the aforesaid provision as enshrined under Section 73 of the Code of Criminal Procedure and also, recommendation of the Law Commission in its 41st report did observe in paragraph 20 of the said judgment as under: "That Section 73 confers a power upon a Magistrate to issue a warrant and that it can be exercised by him during investigation also, can be best understood with reference td Section 155 of the Code. As already noticed under this section a police officer can investigate into a non-cognizable case with the order of a Magistrate and may exercise the same powers in respect of the investigation which he may exercise in a cognizable case, except that he cannot arrest without warrant. If with the order of a Magistrate the police starts investigation into a non-cognizable and non-bailable offence, [like Section 466 or 467 (part-I) of the Indian Penal Code and if during investigation the Investigating Officer intends to arrest the person accused of the offence he has to seek for and obtain a warrant of arrest from the Magistrate. If the accused evade the arrest, the only course left open to the Investigating Officer to ensure his powers under Section 73 and thereafter those relating to proclamation and attachment. In such an eventuality, the Magistrate can legitimately exercise his powers under Section 73 for the person to be apprehended is "accused of a non-bailable offence and is evading arrest." 12. Consequently, it was held that Section 73 of the Code is of general application and that in course of investigation a court can issue a warrant in exercise of power thereunder to apprehend, inter alia, a person who is accused of non-bailable offence and is evading arrest. 13. While holding so, it was also observed that warrant of arrest cannot be issued only for helping and assisting the prosecution/police in investigation. 14. 13. While holding so, it was also observed that warrant of arrest cannot be issued only for helping and assisting the prosecution/police in investigation. 14. Thus, the question which is to be considered as to whether the learned Judge has issued warrant of arrest against the petitioner in consonance with the provision of Section 73(1) of the Code of Criminal Procedure or not? 15. From perusal of the impugned order, it does appear that it was advanced before the learned 1st Additional Judicial Commissioner, Ranchi on behalf of the Investigating Officer that certain materials have been collected showing involvement of the petitioner in the offence punishable under Section 4 of the Prevention of Money Laundering Act, 2002 and that the petitioner deliberately did not appear before the authority in spite of the fact that he was repeatedly asked to be present before the Investigating Officer and that it has come to the knowledge of the Investigating Officer that the appellant has gone underground. Besides this, it was also stated on behalf of the Investigating Officer before the court that his statement needs to be recorded for the purpose of locating the trail of proceeds of crime and taking clue from the later part of the statement put before the court argument was put forth with emphasis that warrant of arrest has been issued by the court for helping and assisting the prosecution in investigation. But if the order impugned is read in totality, it would appear that the trial court having been satisfied that the petitioner is an accused of an offence punishable under Section 4 of the Prevention of Money Laundering Act and that he has been evading arrest, issued warrant of warrant and as such, I do not find any illegality in the order. 16. So far as the case of Nalini Kant Agrawal vs. State of Bihar and Others (supra) and also the case of Krishna Murari Yadav vs. State of Bihar (supra) referred. to above are concerned, it never help the petitioner as in one of the cases, warrant of arrest had been issued by recording only that the Investigating Officer submitted an application for issuance of warrant, seen the same, warrant be issued against the accused persons. This was never in consonance of the provision of Section 73 of the Code of Criminal Procedure. 17. This was never in consonance of the provision of Section 73 of the Code of Criminal Procedure. 17. Similarly, in a case of Krishna Murari Yadav vs. State of Bihar (supra), the order under which warrant of arrest against the petitioner had been issued was quashed as the court, in the facts and circumstances, did find that the petitioner cannot be considered to be absconder as only after three days of the institution of the case, the Investigating Officer had prayed for issuance of the warrant but in the instant case, as I have already noted that the warrant of arrest issued against the petitioner Was quite in consonance with the provision of Section 73(1) of the Code of Criminal Procedure. 18. Thus, I do not find any merit in this case and hence, it is dismissed.