Research › Search › Judgment

Orissa High Court · body

2018 DIGILAW 705 (ORI)

Sushama Meher v. State of Orissa

2018-07-31

S.K.SAHOO

body2018
JUDGMENT S. K. SAHOO, J. - This is an application under section 482 of Cr.P.C. filed by the petitioner Sushama Meher challenging the order dated 24.04.2018 passed by the learned Special Judge(Vigilance), Bhubaneswar in T.R. No. 44 of 2017 in issuing non-bailable warrant of arrest against her. The said case arises out of Cuttack Vigilance Cell P.S. Case No.07 of 2016. It is submitted by the learned counsel for the petitioner that during course of investigation of the case, the petitioner approached this Court in an application under section 438 Cr.P.C. in ABLAPL No. 7686 of 2016 and this Court vide order dated 17.05.2016 the following order was passed: “Heard learned counsel for the petitioner and learned counsel appearing for the Vigilance Department. Considering the nature of allegations made against the petitioner and keeping in view the fact that the petitioner is the wife of a public servant, it is directed that in the event of arrest of the petitioner in Cuttack Vigilance P.S. Case No. 07 of 2016, corresponding to V.G.R. Case No. 10 of 2016, pending in the court of learned Special Judge(Vigilance), Cuttack, she shall be released on bail by the arresting officer on such terms and conditions as the arresting officer may deem just and proper. It is needless to say that the petitioner shall appear before the Investigating Officer as and when required and cooperate in the investigation of the case. The ABLAPL is disposed of.” It is further submitted that charge sheet was submitted on 29.08.2017 under section 13(2) read with section 13(1)(e) of the Prevention of Corruption Act, 1988 read with section 109 of the Indian Penal Code against the petitioner and co-accused Sukadev Meher who is the husband of the petitioner and after receipt of the charge sheet, the learned Special Judge (Vigilance), Bhubaneswar vide order dated 31.10.2017 has been pleased to take cognizance of the offences under which charge sheet was submitted and issued summons against both the accused persons. It is further submitted that even though the Court issued summons against the petitioner and there is no service of summons, when the case was posted on 24.04.2018 and the service return was not back, the Court directed issuance of fresh summons and posted the case to 30.05.2018 for appearance of the petitioner but on the very day, at a later stage when the service return was back without proper service, the learned Court held that the petitioner was keeping away from service of summons and accordingly issued non-bailable warrant of arrest fixing 10.05.2018 for her production. It is contended that the impugned order suffers from non-application of mind and it cannot stand under the judicial scrutiny inasmuch as without proper service of summons on the petitioner, the learned Special Judge was not justified in observing that the petitioner was keeping away from service of summons. It is further contended that even section 438(3) of Cr.P.C. provides that while when the accused is on anticipatory bail, if the Court after taking cognizance of offence decides to issue a warrant in the first instance against that accused, he has to issue a bailable warrant in conformity with the direction of the Court who has passed the order under sub-section (1). It is further contended that the impugned order was also passed in respect of coaccused Sukadev Meher and the said accused challenged the order before this Court in an application under section 482 of Cr.P.C. in CRLMC No. 1707 of 2018 and this Court disposed of the matter on 12.06.2018 holding that in the event the coaccused surrenders before the learned Special Judge(Vigilance), Bhubaneswar and moves for bail, he shall be released on such terms and conditions as the learned Special Judge, Bhubaneswar may deem fit and proper. Learned counsel further submitted that the petitioner being a lady, there is every chance of her being arrested in pursuance of the impugned order and since the petitioner has not flouted the terms and conditions of the order of anticipatory bail and she is also ready and willing to appear before the learned trial Court on any date fixed by this Court as well as to cooperate in the trial, unless the impugned order is quashed and the petitioner is directed to be released on bail on surrendering before the Court below, she will be seriously prejudiced. Mr. P.K. Pani, learned Addl. Mr. P.K. Pani, learned Addl. Standing Counsel for the Vigilance Deptt. has no serious objection to the prayer made in this application, particularly in view of the order passed in respect of the co-accused in CRLMC No. 1707 of 2018. Chapter-VI of the Cr.P.C. deals with processes to compel appearance and it is specifically provided as to how a summons is to be served and when and how a warrant of arrest has to be issued by the Court. When the petitioner has been released on anticipatory bail during course of investigation and after submission of charge sheet, the learned Special Judge took cognizance of the offences and issued summons against the petitioner, it was the duty on the part of the learned Special Judge to adopt different methods which are prescribed under the Code for service of summons and if the petitioner would have defaulted in her appearance even after receipt of summons then Court would have issued bailable warrant and in spite of such order, if the Court would have been fully satisfied that the petitioner is avoiding to appear before the Court intentionally, the process of issuance of non-bailable warrant of arrest would have been resorted to. When on 24.04.2018 the service return was not back and the Court directed for issuance of fresh summons, at the later stage when the service return was back without proper service, there was no justification on the part of the Special Judge to pass a different type of order than which he had already passed at the first instance on the very same day. There was no material before the Court that the petitioner was keeping away from service of summons. Such type of observation which is based on no material reflects the nonapplication of mind and arbitrary exercise of judicial discretion which is not envisaged under law. Personal liberty is paramount and the Courts are not expected to issue warrant in a casual manner without proper application of mind. As there is question of deprivation of personal liberty guaranteed under Article 21 of the Constitution of India, the Court has to carefully go through all the papers produced by the prosecution and the report of the process server, if any, before passing the order. As there is question of deprivation of personal liberty guaranteed under Article 21 of the Constitution of India, the Court has to carefully go through all the papers produced by the prosecution and the report of the process server, if any, before passing the order. In view of the foregoing discussions, in my considered opinion the issuance of non-bailable warrant of arrest was totally illegal and unjustified and therefore, invoking the inherent powers under section 482 of Cr.P.C., I quash the order of issuance of NBW against the petitioner as per the order dated 24.04.2018. Since the husband of the petitioner who is a coaccused in the case has already been directed to be released on bail in the event of his surrendering before the trial Court and there is no distinguishing feature between the two accused persons, I direct that if the petitioner surrenders before the learned Special Judge, Bhubaneswar in the aforesaid case within a period of four weeks from today, she shall be released on bail by the Court on suitable terms and conditions. Accordingly, the CRLMC application is allowed. Application allowed.