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2018 DIGILAW 1235 (RAJ)

Pushya Mitra Singh Deo v. Union Of India

2018-05-09

DEEPAK MAHESHWARI

body2018
JUDGMENT Deepak Maheshwari, J. - On resuming the arguments, the learned counsel for the respondents at the outset mentioned that as per the search made on the site of Supreme Court of India, an SLP No. 4466/2017 preferred by the Directorate of Enforcement against the judgment dated 22.3.2017 is found to be pending before the Hon'ble Supreme Court. 2. Copy of the order dated 24.7.2017 has been placed on record by learned counsel for the respondents passed in SLP (Crl) No. 4466/2017 titled as Directorate of Enforcement v. M/s. Obulapuram Mining Company Pvt. Ltd. , which reads as under:- "Leave granted. In the meantime, the impugned judgment and order will not operate as a precedent. Liberty is granted to file Rejoinder Affidavit within a period of 4 weeks from today." 3. Learned counsel for the respondents has contended that heavy reliance was placed by the rival side on Ajay Kumar Gupta v. Adjudicating Authority (PMLA) which was mainly based on the case of Directorate of Enforcement v. M/s. Obulapuram Mining Company Pvt. Ltd. It has also been contended by counsel for the respondent that in Ajay Kumar Gupta's case (supra), the judgment of Hon'ble Supreme Court in Sajjan Singh v. State of Punjab was not considered. Thus, the judgment in Ajay Kumar Gupta's case was per incurium. It has further been contended by counsel for the respondents that in the order 24.7.2017, referred to above, the judgment in "Directorate of Enforcement v. M/s. Obulapuram Mining Company Pvt. Ltd." has been held as not to operate as a precedent, so the finding given in Ajay Kumar's Case also goes away and cannot be taken help by the petitioner's side. 4. Learned counsel for the respondents submits that that in the SLP preferred by the Directorate of Enforcement v. M/s. Obulapuram Mining Company Pvt. Ltd., leave has been granted and thus it has been converted into appeal. The appeal is said to be pending before the Hon'ble Apex Court for final hearing, last date of its listing being 4.5.2018. 5. 4. Learned counsel for the respondents submits that that in the SLP preferred by the Directorate of Enforcement v. M/s. Obulapuram Mining Company Pvt. Ltd., leave has been granted and thus it has been converted into appeal. The appeal is said to be pending before the Hon'ble Apex Court for final hearing, last date of its listing being 4.5.2018. 5. Learned counsel for both the sides submit that in view of the fact that Hon'ble Supreme Court is seized with the matter regarding the retrospectively of the scheduled offence added in PMLA Act and authoritative pronouncement is expected soon as the matter has been listed for final disposal, it will be appropriate to wait for the decision of Hon'ble Supreme Court which will hlld ground. 6. Counsel for both the sides agree that the fate of the criminal misc. petition preferred by the petitioners will be finally decided by the pronouncement by Hon'ble Apex Court in the matter of Directorate of Enforcement v. M/s. Obulapuram Mining Company Pvt. Ltd. 7. In view of above, hearing in the petition is deferred. 8. Learned counsel for the petitioners has expressed his anxiety about the relief claimed by the petitioners, in so far as it relates to converting the non-bailable warrant issued against the petitioners into bailable one. Counsel submits that as the fate of criminal misc. petition will be decided lateron, this issue, being urgent in nature may be dealth with immediately. 9. In this regard, learned counsel for the respondents has taken the objection that by way of pending criminal misc. petition, challenge has been made by the petitioners to the orders impugned dated 12.3.2018 (Annex.5 & 6). But the petition was not directed against the order dated 15.3.2018 whereby the application preferred by the petitioners under Section 70(2) Cr.P.C , 1973was rejected by the learned trial court. Counsel submits that the order dated 12.3.2018 gets merged into the order dated 15.3.2018 and unless the later order is challenged, no relief can be claimed by the petitioners. He, therefore, contends that this relief cannot be granted to the petitioners. 10. Per contra, learned counsel for the petitioners contends that such technicalities cannot be pitted against the prayer made by way of this criminal misc. petition. He, therefore, contends that this relief cannot be granted to the petitioners. 10. Per contra, learned counsel for the petitioners contends that such technicalities cannot be pitted against the prayer made by way of this criminal misc. petition. He contends that the order dated 12.3.2018 is to the effect of taking cognizance against the petitioners for the offence under Section 3 read with Section 4 of the PMLA Act, 2002. If the relief claimed by way of this petition is granted on later point of time in favour of petitioners and the cognizance order itself is quashed and set aside, then no occasion remains to call them by way of non-bailable warrants. If this prayer is being deferred to wait for the authoritative pronouncement by Hon'ble Apex Court, for the present, it needs to be ordered that non-bailable warrants will also remain in abeyance or atleast will be converted into bailable warrants. He also draws attention of this court that earlier also a technical objection was raised by the opposite side in S.B. Cr. Writ Pet. No. 309/2018 regarding its maintainability of the writ petition challenging the order dated 15.3.2018. Now when the criminal misc. petition has been preferred under Section 482 Cr.P.C, 1973 the respondents are again playing hide and seek to oppose the prayer on technicalities. 11. Learned counsel has also brought it into notice of the court that in the predicate offence under Section 109 IPC read with Section 13(2) r/w section 13(1)(e) of the P.C. Act, the petitioner no. 2 Smt. Anita Singh Dev has been granted anticipatory bail under Section 438 Cr.P.C , 1973by the CBI Court No. 1, Jaipur on 13.1.2012. Similarly, the petitioner no. 1 P.M. Singh Dev has also been allowed bail under Section 439 Cr.P.C , 1973vide order dated 2.2.2012 in the predicate offence under Section 13(2) read with Section 13(1)(e) of the P.C. Act by learned CBI Judge No. 1, Jaipur. Counsel further submits that since the petitioners were enlarged on bail, they have been regularly attending the court proceedings and have never misused the liberty granted in their favour. Counsel also submits that the petitioner no. 1 is Sr. Gazetted Officer and posted as Inspector General-cum-Chief Security Officer, Railway Protection Force, North-West Railway, Jaipur, the petitioner no. 2 is his wife and doing her own business. Counsel also submits that the petitioner no. 1 is Sr. Gazetted Officer and posted as Inspector General-cum-Chief Security Officer, Railway Protection Force, North-West Railway, Jaipur, the petitioner no. 2 is his wife and doing her own business. It has further been contended that looking to the antecedents of the petitioners, there cannot be any possibility that they will not respect the process issued by the court and will not participate in the judicial proceedings. On the strength of the judgment in Inder Mohan Goswami and anr. v. State of Uttaranchal and ors.- AIR 2008 SC 251 , counsel for the petitioners contends that the constitutional right of the personal liberty of every citizen is to be respected and cannot be allowed to be infringed. If the summons will be suffice in securing the appearance of the accused petitioners before the court, nonbailable warrants ought not to have been issued for that purpose. 12. Having given thoughtful consideration to the submissions made by both the sides, I am not satisfied with the plea raised by the counsel for the respondents that in absence of challenging the order dated 15.3.2018, the prayer of the petitioners to covert the non-bailable warrants into bailable warrants cannot be granted. Order dated 12.3.2018 which has been challenged by way of instant criminal misc. petition is the order by which cognizance was taken against the petitioners for the offence punishable under Section 3/4 of the PMLA Act, 2002 and at the same time, order for issuance of non-bailable warrant was also passed. Later part of the order is certainly dependent upon and consequent to the order of cognizance. If cognizance order is not maintained, then the order of calling the petitioners by way of arrest warrant also does not subsist. Since the Hon'ble Apex Court is seized with the present controversy in the case of "Directorate of Enforcement v. M/s. Obulapuram Mining Company Pvt. Ltd." (supra) and the proceeding of this petition has been deferred to wait for the authoritative pronouncement on the issue, for the present, it cannot be said with certainty that the petitioners will not be able to get the relief. Taking into account the possibility of favourable decision, the petitioners cannot be put to a dis-advantageous position by way of not allowing their prayer for converting the non-bailable warrants into bailable one. Taking into account the possibility of favourable decision, the petitioners cannot be put to a dis-advantageous position by way of not allowing their prayer for converting the non-bailable warrants into bailable one. More so, when the existence of non-bailable warrant is dependent upon the existence of cognizance order. Secondly, the order passed on 15.3.2018 is also based and dependent on the order dated 12.3.2018. Laying a challenge to the basic order dated 12.3.2018 by which the nonbailable warrant was issued, is thus sufficient ground to consider the prayer made by the petitioners. 13. Further this aspect cannot be lost sight of that for the predicate offences under Section 109 IPC read with Section 13(2) and 13(1)(e) of the PC Act, petitioners have been granted bail under section 439 and 438 Cr.P.C , 1973respectively. It is not the case of the respondents that the petitioners have since misused the liberty granted to them. When they are regularly securing their presence before the concerned trial court, it cannot be presumed that unless non-bailable warrants are issued against them, it will be difficult to secure their presence before the court having jurisdiction for the PMLA Act. 14. It will be apt to mention here the principles laid down by Hon'ble Apex Court in Indermohan Goswami's case (supra). In para nos. 52 and 53, the Hon'ble Apex Court has held as under: 52. 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. 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 ramification 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." 15. 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 ramification 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." 15. In view of whatever stated above, while keeping proceedings of the instant petition is abeyance to wait for the authoritative pronouncement by Hon'ble Apex Court in SLP No. 4466/2017 which has been converted into appeal vide order dated 24.7.2017 in the matter of "Directorate of Enforcement v. M/s. Obulapuram Mining Company Pvt. Ltd. ", for the present, part of the prayer made on behalf of the petitioners to covert the non-bailable warrants issued against them into bailable warrants in the case bearing criminal complaint no. 2/2016 pending before the Special Court (PMLA), Jaipur, is granted. Concerned Court is directed to take the steps accordingly. 16. List the misc. petition after the judgment in the matter of " Directorate of Enforcement v. M/s. Obulapuram Mining Company Pvt. Ltd. " (supra) is pronounced by Hon'ble Apex Court.