A. Krishna Reddy vs C.B.I.

Mukta Gupta, J.—By this petition the Petitioner seek setting aside of the order dated 15th June, 2011 as also the order dated 23rd May, 2011 and quashing of initiation of proceedings u/s 82 Code of Criminal Procedure in R.C. No. DAI-2010-A-0044 u/s 420/467/468/471 Indian Penal Code, 1860 read with 120-B Indian Penal Code, 1860 and 13(1)(d) read with 13(2) of Prevention of Corruption Act (in short "PC Act").

The contention of the learned Counsel for the Petitioner is that the Petitioner was sub-contractor of M/s. Gem International which was itself a sub-contractor of M/s. Swiss Timing Ltd. (in short "SLT"). The Petitioner entered into an agreement with M/s. Gem International on the 29th June, 2010 for laying of cables and related civil works for the TSR contract for the 17 stadiu Ms. The Petitioner was never into picture when the Organizing Committee entered into agreement with the STL. The Petitioner entered belatedly because the work had to be completed in time as it was lagging behind and due to torrential rains extra work force, materials etc. were required. Despite the Petitioner neither being named in FIR nor having any connection with either M/s. STL or M/s. Gem International the premises of the Petitioner at Hyderabad were raided on 7th February, 2011 and documents were sought u/s 91 Code of Criminal Procedure which were immediately handed over to the CBI. The Respondent''s officers intensively interrogated the Petitioner at Hyderabad and their queries were satisfactorily answered. On 10th February, 2011 CBI sent a fax message to the office of the Petitioner directing him to furnish certain more documents and to bring some more witnesses to Delhi. As per the oral instructions, on 11th February, 2011 the Petitioner appeared before the CBI officers and was subjected to a grueling interrogation till late hours. He was again asked to appear on the 12th February, 2011. When he again appeared on the 12th February, 2011 at about 8.00 PM, he was asked to sign a notice purportedly issued u/s 160 Code of Criminal Procedure directing him to appear on 13th February, 2011. The Petitioner had to leave for Hyderabad in early hours of 13th February, 2011 as his wife was seriously ill. This information was given by the Petitioner to the Investigating Officer on fax on 13th February, 2011.

Aggrieved by the action of the CBI, the Petitioner filed a writ petition being W.P. (Crl.) No. 241/2011 before this Court seeking quashing of the abovementioned FIR which is pending adjudication before this Court. On 17th February, 2011 the Investigating Officer sent another letter by fax asking for some more documents on 21st February, 2011. Petitioner was unable to furnish the said documents. He informed the CBI about his inability. On 25th February, 2011 the Investigating Officer sent notices to Petitioner by fax to appear before the Investigating Officer on 2nd March, 2011. However, as the condition of the Petitioner''s wife was still very bad, the Petitioner sent a letter to the Investigating Officer to defer the enquiry dates. On 8th March, 2011 CBI sent another notice u/s 91 Code of Criminal Procedure to produce some more documents and to appear personally on the 11th March, 2011. Since there was great disturbances at that time due to violent agitation regarding separate Telengana State and also due to ill-health of the wife of the Petitioner, Petitioner sent a fax message dated 10th March, 2011 requesting the postponement of investigation to 25th March, 2011. On 29th March, 2011 the learned Trial Court issued non-bailable and search warrants against the Petitioner. On 31st March, 2011 a search was conducted at the residential as well as office premises of the Petitioner, however, the Petitioner was not available at that time as he was in Madhya Pradesh.

According to the Petitioner, the Petitioner had sufficiently joined the investigation and submitted all documents. The learned Trial Court erred in not considering the fact that the Petitioner was not named in FIR and for the first time he was named as an accused in the charge-sheet filed by the CBI on 20th May, 2011 and, thus, there was No. deliberate intention to hide or abscond from the process of law. Even on 31st March, 2011 the CBI conducted search at the residential as well as office premises of the Petitioner and it was clearly disclosed that the Petitioner was at work site at Madhya Pradesh. Reliance is placed on Jayant Vishnu Thakur v. State of Maharashtra : (2009) 7 SCC 104 to contend that learned Trial Court failed to appreciate what "abscondence" meant. It is, thus, prayed that the impugned order be set aside.

Learned Counsel for the CBI on the other hand contends that the Petitioner appeared before the CBI only on 11th February, 2011 and 12th February, 2011. Thereafter, despite notices admittedly received he did not appear on 13th February, 2011 and left for Hyderabad without informing the CBI. It is contended that the falsity of the excuses made by the Petitioner was evident from the fact that on the one hand Petitioner claimed that he was unable to appear before the Investigating agency on account of Wife''s illness, however admittedly on 31st March, 2011 when the CBI team searched the residential office of the Petitioner, he was not available and was purportedly in Madhya Pradesh on work. No. address or whereabouts of Madhya Pradesh were furnished. The anticipatory bail application of the Petitioner was dismissed by the Hon''ble High Court of Andhra Pradesh on the 28th March, 2011. The stand of the CBI was clearly spelt out and is recorded in the order. Thereafter application for issuance of non-bailable warrants was filed on 29th March, 2011 which was allowed. The report with regard to non-bailable warrants being unexecuted was filed on 23rd May, 2011 and a proclamation was issued requiring the presence of the Petitioner on 14th July, 2011. The Petitioner after 12th February, 2011 evaded the process of investigation and, thus, there is No. infirmity in the order. During investigation clear allegations have emerged against the Petitioner and the learned Trial Court conscious of those allegations issued non-bailable warrants. Thus, there is No. merit in the petition and the same be dismissed.

I have heard learned Counsel for the parties. With regard to non-appearance pursuant to various notices, it is evident that the Petitioner though was very much in a position to attend the investigation but deliberately tried to evade the process of law on one ground or the other. The power of the Court u/s 73 Code of Criminal Procedure to issue non-bailable warrants against the persons who are accused of non-bailable offence and are evading arrest is clearly defined. Despite notices by the CBI the Petitioner refrained to appear before Investigating Officer. The Petitioner is an accused in this case and because of his absence the Court was justified in issuing warrants. The Learned Trial Court examined the reasons given by the Petitioner for his non-appearance before the Investigating Officer after the 12th February, 2011 and came to the conclusion that the same were not justified and there was No. sufficient explanation for the Petitioner to leave the station. Though the Petitioner had sent a fax message on 10th March, 2011 stating that he would appear before the Investigating Officer on 25th March, 2011, however he did not appear and when the CBI team searched the residential office of the Petitioner, he was not available and was purportedly in Madhya Pradesh on work. No. address or whereabouts of place in Madhya Pradesh were furnished. The said fax message was false and misleading. Non-bailable warrants and search warrants were issued on 29th March, 2011. The Learned Trial Court also took into consideration that there was prima facie material on record against the Petitioner showing his involvement in the conspiracy.

Reliance of the Petitioner on Jayant Vishnu Thakur (supra) is misconceived. The Hon''ble Supreme Court was dealing with a case where the accused was being proceeded u/s 299 Code of Criminal Procedure The Hon''ble Supreme Court laid down the conditions precedent for recording of the evidence in absence of an absconding accused. In the said case, the accused was absconding after he was arrested. In the present case, it is at the stage where the Petitioner is avoiding investigation/arrest and even non-bailable warrants are also not being executed against him, thus, the process of the Court has been issued. The Court is within its right to declare him as a proclaimed offender. Section 73 Code of Criminal Procedure permits the Magistrate to issue a warrant even against a person, who is accused of a non-bailable offence and is avoiding arrest. After issuance of this process if Petitioner still does not submit to the Court, the Court would be within its jurisdiction to proclaim him as an absconder u/s 82 Code of Criminal Procedure

In Siddharam Satlingappa Mhetre Vs. State of Maharashtra and Others, , their lordships have brought forth the plight of large number of under-trials who are languishing in jail for a long time even for allegedly committing very minor offences and held that Section 438 Code of Criminal Procedure has not been allowed in its full play. There is No. denial to the fact that the liberty of an individual is precious and so is the society''s interest in maintaining peace, law & order. It was thus held that arrest should be the last option and it should be restricted to those exceptional cases where arresting the accused is imperative in the facts and circumstances of the case. The Court must carefully examine the entire available record and the allegations directly attributed to the accused and that these allegations should be corroborated by other material and circumstances on record. Applying the law laid down by their lordships, it may be noted that the learned Trial Court was conscious of the fact that the notices were given to the Petitioner to join the investigation however he did not join. The learned Special Judge was further cautious that the investigation involved unearthing of conspiracy in awarding the tender and the money trail thereafter.

In Inder Mohan Goswami and Another Vs. State of Uttaranchal and Others, , it has been held as under:

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 straitjacket formula for issuance of warrants but as a general rule, unless an accused is charged with the commission of any 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.

From the aforesaid facts it is clear that the investigating agency have sufficient prima facie evidence against the Petitioner to take further action against him. Therefore, I am of the opinion that the production of Petitioner in the present case before the Court is essential and thus, I find No. illegality in the order passed by the learned Special Judge. The petition and application are dismissed being devoid of merit.