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Jharkhand High Court · body

2015 DIGILAW 424 (JHR)

Satyam Kasturi v. State of Jharkhand

2015-03-27

R.R.PRASAD

body2015
ORDER 1. Before coming to the submission advanced on behalf of the petitioner and the Vigilance, the order which was passed on 20.3.2015 needs to be recorded which reads as under: “Heard learned counsel appearing for the petitioner and learned counsel appearing for the Vigilance. Learned counsel appearing for the petitioner submits that there was an agreement in between M/s. REIL, a Public Sector Undertaking and M/s. JREDA for solar electrification of 6194 houses and 613 streets in the district of Khunti. Since M/s. REIL was unable to execute the work an understanding arrived at in between M/s. PPS Enviro Power Limited and M/s REIL that the work would be executed by M/s. PPS Enviro Power Limited which decision was communicated to M/s JREDA. Accordingly, work order was issued in the name of M/s.REIL, a Public Sector Undertaking but copy of it was marked to M/s. PPS Enviro Private Limited. Thereupon M/s. PPS Enviro Private Limited executed the work and even payments were made to M/s. PPS Enviro Private Limited. Thereupon, a Public Interest Litigation was filed before this Court wherein allegations of misappropriation, Nepotism was alleged against the officials of M/s. JREDA. By virtue of the order passed by this Court, Vigilance registered a case initially against M/s. JREDA and also against this petitioner. During investigation, some allegations were found against the petitioner and presumably for that reason, the petitioner was summoned by the Vigilance. The petitioner responded to that summon and appeared before the officer of the Vigilance on 14.9.2012 and gave statement in extenso which was recorded by the Investigating Officer. Thereafter on 23.12.2014 charge sheet was submitted wherein the petitioner was shown absconder and thereby warrant of arrest was issued by the court by holding that the petitioner is evading arrest and subsequently, process under Section 82 of the Code of Criminal Procedure was issued against the petitioner which is quite illegal. Thereafter on 23.12.2014 charge sheet was submitted wherein the petitioner was shown absconder and thereby warrant of arrest was issued by the court by holding that the petitioner is evading arrest and subsequently, process under Section 82 of the Code of Criminal Procedure was issued against the petitioner which is quite illegal. Mr.Shailesh, learned counsel appearing for the Vigilance submits that it is true that on 14.9.2012 statement of the petitioner was recorded which was prior to lodging of the FIR but the charge sheet has been submitted on 23.12.2014 which is after more than two and half year and during this period, if the Investigation Officer did find the petitioner evading arrest nothing wrong was committed by reporting to the court that the petitioner is evading his arrest, on the basis of which, warrant of arrest has been issued which fact can be demonstrated from certain paragraph of the case diary. Therefore, the case be adjourned so that he may get hold of the case diary. In view of the submission, let these matters be listed on 27.3.2015 under the heading for orders.” 2. Mr.Soumitra Sen, learned Sr. counsel appearing for the petitioner submits that when something wrong was found on the part of the authority of JREDA in entrusting M/s. PPS Enviro Private Limited to execute work without following norms the statements of the petitioners, who happen to be the Directors of M/s. PPS Enviro Private Limited, was recorded before lodgment of the case. However, when the case was lodged, the petitioners were also made accused though the petitioners cannot be held responsible for non-adhering to any rule or norms by M/s. JREDA and thereby the petitioner was quite sure that no culpability would be found on the part of the petitioner but the Vigilance when submitted charge sheet, it also made M/s. PPS Enviro Private Limited and also its Directors accused to which these petitioners had no knowledge. In course of time, warrant of arrest was issued and subsequently, even the process under Section 82 of the Code of Criminal Procedure was issued against the petitioner which has been challenged before this Court but the petitioner would not be challenging the propriety and legality of the order at this moment, rather the petitioner would be surrendering before the court but the court be directed to consider the case as to whether there has been at all any necessity of taking the petitioner in custody which the court should always consider in view of the decision rendered in a case of Raghuvansh Dewanchand Bhasin vs. State of Maharashtra and another [ (2012) 9 SCC 791 ]. 3. As against this, Mr. Shailesh, learned counsel appearing for the Vigilance submits that the Investigating Officer after making full compliance of the provision of the Code made requisition for issuance of warrant of arrest and the court being satisfied with that had issued warrant of arrest first and then process under Section 82 and now even the process under Section 83 of the Code of Criminal Procedure has been issued. 4. Since learned counsel appearing for the petitioner submits that he would not be challenging the legality and propriety of the order under which warrant of arrest and the process under Section 82 has been issued, I need not to go into the matter. 5. However, in the context of submission made on behalf for the petitioner, I may refer to a decision rendered in a case of Raghuvansh Dewanchand Bhasin vs. State of Maharashtra and another (supra) wherein their Lordships had observed as follows: “10. It needs little emphasis that since the execution of a non-bailable warrant directly involves curtailment of liberty of a person, warrant of arrest cannot be issued mechanically but only after recording satisfaction in the facts and circumstances of the case it is warranted. 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. At the same time, there is no gain saying that the welfare of an individual must yield to that of the community. 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. At the same time, there is no gain saying that the welfare of an individual must yield to that of the community. Therefore, in order to maintain the rule of law and to keep the society functional in harmony, it is necessary for the Court to strike a balance between an individual's rights, liberties and privileges on the one hand, and the Sate on the other hand, indeed, it is a complex exercise. As Cardozo, J.puts it “ on the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice.” 11. Be that as it may, it is for the court, which is chothed with the discretion to determine whether the presence of an accused can be secured by a bailable or non-bailable warrant of strike the balance between the need of law enforcement on he one hand and the protection of the citizen from highhandedness 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. 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.” 6. By taking cue of the observation made in paragraph 11, learned counsel appearing for the petitioner has submitted that the court at the time of hearing of the bail application should consider as to whether it would be necessary for the court to take the petitioner in custody in the facts and circumstance of the case. 7. Accordingly, this application is disposed of directing the petitioner to surrender before the court and on his surrender, if the bail application is filed, that be considered in the light of the submission made hereinabove. 8. With this observation, these two applications stand disposed of.