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Jharkhand High Court · body

2015 DIGILAW 1301 (JHR)

Ashok Kumar Agarwal v. State of Jharkhand

2015-10-15

RAVI NATH VERMA

body2015
ORDER : Invoking the extra ordinary jurisdiction of this Court under Article 226 of the Constitution of India, the petitioners question the legality of the orders dated 21.02.2015, 19.03.2015 and 14.07.2015 passed by learned Chief Judicial Magistrate, Dhanbad in connection with Dhanbad (Dhansar) P.S. Case no. 1015 of 2014 corresponding to G.R. Case no. 4694 of 2014 whereby and whereunder the warrant of arrest, the Proclamation under Sections 82 and Processes for attachment of the properties of the petitioners under Section 83 of the Code of Criminal Procedure (in short the Code) respectively have been issued. 2. Bereft of unnecessary details, the facts, which are necessary to be stated, are that at the instance of the informant Anil Kumar Agarwal, the aforesaid case was instituted under Sections 406, 420 and 120(B) of the Indian Penal Code with the allegation that in the year 2011, the accused persons including the petitioners approached the informant and introduced themselves as the Managing Director and Director of M/s. Metallics Limited, Barbil, Keonjhar, Orissa and expressed their desire to purchase coal on credit and promised to pay the consideration amount soon after the delivery of coal. On the assurance of the petitioners that the amount would be given within 60 days, the informant sent coals worth Rs. 1 Crore and odds, Rs. 1 Crore 72 Lakhs and odds and Rs. 3 Crores 82 Lakhs and odds from Luky Coke Industries in between 10.03.2011 to 31.07.2011 and coal worth Rs. 4 Crores and odds and 2 Crores 94 Lakhs and odds from Ayesh Coal Trading Company and further coal worth Rs. 85 lakhs and odds from Jwala Coke Pvt. Ltd. but as the above amounts were not paid, a reminder was sent. Whereafter on 23.04.2014, Mahesh Agarwal came to his office and executed one document to the effect that they would pay Rs.66,89,000/- per month towards the total outstanding amount of Rs.6,68,90,000/- and further executed to Swikaroktinama for the dues of Rs. 6,76,97,062/- towards the Luky Coke Industries and Ayesh Coal Trading Company but since no payment was made, the aforesaid case was lodged. 3. 6,76,97,062/- towards the Luky Coke Industries and Ayesh Coal Trading Company but since no payment was made, the aforesaid case was lodged. 3. It appears from the order-sheet of the court below enclosed with this writ application that F.I.R. was sent to the Court on 13.10.2014 and the court fixed the date 13.11.2014 awaiting final form but as the final form was not submitted, the court fixed 25.02.2015 as the next date in anticipation of submission of final form but before the aforesaid date, the Investigating Officer filed a requisition on 21.02.2015 for issuance of warrant of arrest against the petitioners on the ground that earlier notice under Section 41(A) of the Code was sent to the accused-petitioners but none of them appeared before him. The prayer was made for issuance of warrant of arrest. Accordingly, the warrant of arrest was issued. It further appears that on the very next date i.e. on 19.03.2015, again on a requisition filed by the Investigating Officer along with the execution report of warrant, the proclamation under Section 82 of the Code was issued which was received by the I.O. on 20.03.2015. Again, a petition was filed by the I.O. on 20.06.2015 with photographs and execution report of proclamation and prayed for issuance of attachment of property, which was turned down by the court below but when the Investigating Officer again filed a requisition on 14.07.2015 and prayed for issuance of Processes for attachment of the property of the accused persons, the same was directed to be issued. 4. Learned senior counsel Mr. R.S.Majumdar, appearing for the petitioners assailing the orders of issuance of warrant of arrest, the proclamation and the process for attachment of properties of the petitioners seriously contended that all the three orders of the court below are perverse and bad in law. It was also submitted that from the service report of the notice issued under Section 41(A) of the Code, it would appear that the said notice was served upon the Gatekeeper or Guard of the petitioners but the requisition filed by the Investigating Officer along with the service report does not speak on which date and time, the said notice was handed over to the above person though in view of Section 64 of the Code, the service of notice on the servant of the house cannot be considered as valid service. Learned counsel further submitted that in view of the mandates and guidelines given by the Honble Supreme Court in the cases Raghuvansh Dewanchand Bhasin Vs. State of Maharashtra and another; (2011) 4 JLJR 385 (SC) and Inder Mohan Goswami & Anr. Vs. State of Uttranchal & Ors.; [2008(1) J L J R 82 (S.C.)] and Lalita Kumari Vs. Govt. of U.P; (2014) 2 SCC 1 , only after issuance of summon and bailable warrant, non-bailable warrant of arrest should be issued even in cognizable offences where the period of sentence is less than seven years. Lastly it was submitted that the orders are non-speaking and without application of judicial mind. Hence, they deserve to be quashed. 5. Refuting the aforesaid submissions, Mr. Kashyap learned senior counsel for opposite party no.2 seriously contended that the directions given by the Hon’ble Supreme Court in Arnesh Kumar Vs. State of Bihar; 2014(3) JBCJ 352 (S.C.) has been sincerely followed by the Investigating Officer and notice under Section 41(A) of the Code was issued by the Investigating Officer before filing of a requisition for issuance of warrant of arrest and Processes in court below. It was also submitted that the objective behind issuance of notice under Section 41(A) of the Code is to give information to the person concerned that he has committed a cognizable offence and after that it shall be the duty of that person to appear before the Investigating Officer in compliance of the terms of the notice. Learned senior counsel further contended that the literal meaning of issuance of summon is also an order to appear in a court of law and that the order sheets of the court below clearly speaks of that after recording its satisfaction, the court below issued the warrant of arrest, the proclamation and processes for attachment of property. Hence, there is no merit in this writ application. 6. Hence, there is no merit in this writ application. 6. After hearing both the counsels and after going through the record of the case and especially the certified copy of the order sheets, I find that the notices under Section 41(A) of the Code were issued by the Investigating Officer but no summon as provided in the Code was ever issued by the court below and on mere requisition filed by the Investigating Officer, warrant of arrest and by subsequent orders proclamation and process for attachment of properties of the petitioners were issued under Section 82 and 83 of the Code respectively. 7. For better appreciation, a reference of Section 41 of the Code is necessary, which is reproduced hereinbelow: “Section 41. When police may arrest without warrant.- (1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person- (a) …………….. 7. For better appreciation, a reference of Section 41 of the Code is necessary, which is reproduced hereinbelow: “Section 41. When police may arrest without warrant.- (1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person- (a) …………….. (b) against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely (i) the police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence; (ii) the police officer is satisfied that such arrest is necessary- (a) to prevent such person from committing any further offence; or (b) for proper investigation of the offence; or (c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or (d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to the police officer; or (e) as unless such person is arrested, his presence in the court whenever required cannot be ensured, and the police officer shall record while making such arrest, his reasons in writing: Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest.” (ba) against whom credible information has been received that he has committed a cognizable offence punishable with imprisonment for a term which may extend to more than seven years whether with or without fine or with death sentence and the police officer has reason to believe on the basis of that information that such person has committed the said offence; (c) who has been proclaimed as an offender either under this Code or by order of the State Government; or (d) ……… (e) ………. (f) ……….. (g) ………. (h) ……….. (i) ……….. (f) ……….. (g) ………. (h) ……….. (i) ……….. The F.I.R. in the instant case has been lodged under Sections 406, 420/120-B of the Indian Penal Code and the maximum punishment prescribed in those provisions is seven years. 8. In the case of Inder Mohan Goswami & Anr. Vs. State of Uttranchal & Ors.; [2008(1) J L J R 82 (S.C.)], the Hon’ble Supreme Court while dealing with the similar situation observed in paragraphs 50, 52, 53 and 55 as follows:- “50. 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. When non-bailable warrants should be issued. 52. 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. 53. 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. 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.” 9. In the light of the guidelines given in the aforesaid case, I would like to refer Section 73 of the Code, which deals with the issuance of warrant, which reads as follows:- Section 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 above Section, it appears that it confers a duty upon the Magistrate to issue warrant of arrest on three categories of persons namely (i) escaped convict, (ii) proclaimed offender and (iii) a person, who is accused of non-bailable offence and is evading arrest. The Hon’ble Supreme Court in the case of Raghuvansh Dewanchand Bhasin (supra) considered the issue of execution of non-bailable warrant in paragraph 9 and held as follows:- “9. The Courts have to be extra-cautious and careful while directing issue of non-bailable warrant, else a wrongful detention would amount to denial of constitutional mandate envisaged in Article 21 of the Constitution of India.” The Hon’ble Supreme Court in the same paragraph has further held as follows: “It is for the court, which is clothed with the discretion to determine whether the presence of an accused can be secured by a bailable or non-bailable warrant, to strike the balance between the need of law enforcement on the one hand and the protection of the citizen from high handedness at the hands of the law enforcement agencies on the other. The power and jurisdiction of the court to issue appropriate warrant against an accused on his failure to attend the court on the date of hearing of the matter cannot be disputed. The power and jurisdiction of the court to issue appropriate warrant against an accused on his failure to attend the court on the date of hearing of the matter cannot be disputed. Nevertheless, such power has to be exercised judiciously and not arbitrarily, having regard, inter alia, to the nature and seriousness of the offence involved; the past conduct of the accused; his age and the possibility of his absconding.” 11. Apparently in the instant case, before issuance of non-bailable warrant against the petitioners, the court below has not recorded the satisfaction that in the circumstances of the case it is warranted. Undoubtedly, in course of investigation, the court can issue warrant in exercise of power thereunder to apprehend, inter alia, a person who is an accused of a non-bailable offence and is evading arrest. The question, thus, arises for consideration is as to whether the learned court below issued the warrant of arrest and the subsequent proclamation and processes in consonance with the provisions of Section 73, 82 and 83 of the Code or not? 12. In this context, a reference of Section 82 of the Code is necessary, which reads as follows:- “Section 82. Proclamation for person absconding.- (1) If any Court has reason to believe (whether after taking evidence or not) that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, such Court may publish a written proclamation requiring him to appear at a specified place and at a specified time not less than thirty days from the date of publishing such proclamation. (2) The proclamation shall be published as follows:- (i)(a) it shall be publicly read in some conspicuous place of the town or village in which person ordinarily resides; (b) it shall be affixed to some conspicuous part of the house or homestead in which such person ordinarily resides or to some conspicuous place of such town or village; (c) a copy thereof shall be affixed to some conspicuous part of the Court-house; (ii) the Court may also, if it thinks fit, direct a copy of the proclamation to be published in a daily newspaper circulating in the place in which such person ordinarily resides. (3) A statement in writing by the Court issuing the proclamation to the effect that the proclamation was duly published on a specified day, in the manner specified in clause (i) of sub-section (2), shall be conclusive evidence that the requirements of this section have been complied with, and that the proclamation was published on such day. (4) Where a proclamation published under sub-section (1) is in respect of a person accused of an offence punishable under Section 302, 304, 364, 367, 382, 392, 393, 394, 395, 396, 397, 398, 399, 400, 402, 436, 449, 459 or 460 of the Indian Penal Code (45 of 1860), and such person fails to appear at the specified place and time required by the proclamation, the Court may, after making such inquiry as it thinks fit, pronounce him a proclaimed offender and make a declaration to that effect. (5) The provisions of sub-section (2) and (3) shall apply to a declaration made by the Court under sub-section (4) as they apply to the proclamation published under sub-section (1). The aforesaid provision makes it clear that sub-section (4) of Section 82 of the Code would only be applicable in respect of a person accused of an offence punishable under specific provisions of the Indian Penal Code as indicated therein. Sub-section (1) of Section 82 empowers the Court to issue written proclamation with certain direction to appear at the specified place and time against a person, who is either absconding or concealing himself so that warrant issued against him could not be executed. Similarly, Sub-section (2) of the said provision indicates the manner in which the proclamation shall be published or executed. This sub-section speaks of the subjective satisfaction of the Court and it must be reduced into writing to the effect that the proclamation was duly published on specific date in the manner prescribed above and that the requirement of this section had been complied with and the proclamation has been duly published. Such statement recorded in writing shall be the consequence for the next step for issuance of process for attachment of the property of the accused under Section 83 of the Code. In the instant case, in my opinion, the court below has not followed either the mandates of Sections 82 or 83 of the Code or the guidelines as mandated by the Supreme Court. 13. In the instant case, in my opinion, the court below has not followed either the mandates of Sections 82 or 83 of the Code or the guidelines as mandated by the Supreme Court. 13. In view of the ratio decided in Raghuvansh Dewanchand Bhasin (supra), it is clear that the court has to be extra cautious and careful while directing the issuance of non-bailable warrant. There appears to be a purpose on the part of legislature also to the effect that in order to maintain rule of law and to keep the society functioning in harmony, it is necessary for the court to strike a balance between the individual’s rights under Article 21 of the Constitution and on the other hand, process prescribed under the Code. 14. In view of the above discussion, the impugned order dated 21.02.2015 whereby warrant of arrest has been issued against the petitioners and the subsequent orders dated 19.03.2015 and 14.07.2015 issuing proclamation under Section 82 and processes for attachment of properties of the petitioners under Section 83 of the Code respectively are, hereby, set aside. 15. In the result, this writ application is allowed. However, the court below is directed to proceed in accordance with law.