Ashutosh Kumar And Ors vs Union Of India

Heard the parties through video conferencing.

This criminal miscellaneous petition has been filed invoking the jurisdiction of this Court under Section 482 Cr.P.C. with a prayer to quash the order

dated 25.09.2020 passed by learned Special Judge, CBI, Ranchi in connection with FIR No. RC 17(A) of 2016-R-CBI/ACB/RANCHI corresponding

to Regular CBI Case No. RC 17(A) of 2016-R for the offence punishable under Section 109 of Indian Penal Code and under Section 13 (2) read with

Section 13 (1) (e) of Prevention of Corruption Act, 1988.

It is submitted by Mr. Namit Kumar, learned counsel for the petitioners that the allegation against the petitioners is that the petitioner no.1 while

working and posted at Indo Danish Tool Room during the period 01.04.2007 to 07.10.2016 amassed assets of Rs.1,96,97,628/- disproportionate to the

known source of his income which he could not satisfactorily account for and the allegation against the petitioner no.2 is that she abetted the petitioner

no.1 in accumulation of the assets beyond the known source of his income. It is submitted by the learned counsel for the petitioners that vide order

dated 19.08.2020, learned trial court found sufficient material on record for proceeding inter-alia against the petitioners for having committed offences

punishable under Section 109 of Indian Penal Code and under Section 13 (2) read with Section 13 (1) (e) of Prevention of Corruption Act, 1988 and

accordingly, cognizance for the said offences were taken. It is further submitted that the case was fixed to 11.09.2020 for appearance and summons

were issued to the accused persons who are the petitioners before this Court subsequently, summons were served upon both the petitioners and this

fact is not in dispute. It is further submitted by the learned counsel for the petitioners that the petitioners filed separate anticipatory bail applications

before the trial court on 09.09.2020 and 10.09.2020 respectively and on the prayer of the petitioners for adjournment on the ground of illness of the

learned counsels, the hearing of the said anticipatory bail applications were adjourned to 22.09.2020 and both the anticipatory bail applications were

heard on 22.09.2020 but the learned trial court rejected the anticipatory bail applications. The petitioners thereafter, applied for certified copy of the

rejection order. It is submitted Mr. Namit Kumar, learned counsel for the petitioners that though in paragraph no.10 of the petition, it has been

mentioned that in the summons received by the petitioners from the trial court, the date of appearance of the petitioners before the trial court was

mentioned as 25.09.2020 but he fairly submits that he does not have any copy of the summons with him. It is next submitted by the learned counsel for

the petitioners that as the petitioners applied for the certified copy of the rejection order of the anticipatory bail application on 24.09.2020 hence, it

cannot be said that they were evading the Court proceeding but even then vide order dated 25.09.2020 non-bailable warrant of arrest was issued

against the petitioners by the trial court and the said order dated 25.09.2020 by which non-bailable warrant of arrest was issued against the petitioners

is sought to be quashed in this petition. It is then submitted by the learned counsel for the petitioners that the said order of issuing warrant of arrest

was passed in a mechanical manner without applying any judicial mind and without following the settled position of law.

Learned counsel for the petitioners relied upon the judgment of Hon'ble Supreme Court of India in the case of Raghuvansh Dewanchand Bhasin vs.

State of Maharastra & Anr. reported in (2012) 9 SCC 791 wherein in the facts of that case, when a complaint case involving offences punishable

under Section 324 of Indian Penal Code in relation to some incident alleged to have taken place in an Elite Club of Mumbai and a practising lawyer

was the accused in the case and at a preliminary stage of the said complaint case which was filed against the practicing Advocate, when the case

came up for hearing before Additional Chief Metropolitan Magistrate, non-bailable warrant of arrest was straight way issued by the Additional Chief

Metropolitan Magistrate, the Hon'ble Supreme Court of India in paragraph no.12 of that judgment quoted the observation made by the Hon'ble

Supreme Court of India in the case of Inder Mohan Goswami & Anr. Vs. State of Uttaranchal & Ors. reported in (2007) 12 SCC 1 of the said

judgment which reads as under:-

In Inder Mohan Goswami v. State of Uttaranchal [(2007) 12 SCC 1 : (2008) 1 SCC (Cri) 259] , a Bench of three learned Judges of this Court

cautioned that before issuing non-bailable warrants, the courts should strike a balance between societal interests and personal liberty and exercise its

discretion cautiously. Enumerating some of the circumstances which the court should bear in mind while issuing non-bailable warrant, it was observed:

(SCC pp. 17-18, paras 53-55) ""53. 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.

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.

In complaint cases, at the first instance, the court should direct serving of the summons along with the copy of the complaint. If the accused seem

to be avoiding the summons, the court, in the second instance should issue bailable warrant. In the third instance, when the court is fully satisfied that

the accused is avoiding the court's proceeding intentionally, the process of issuance of the non- bailable warrant should be resorted to. Personal liberty

is paramount, therefore, we caution courts at the first and second instance to refrain from issuing non-bailable warrants.

It is then submitted by the learned counsel for the petitioners that the said order dated 25.09.2020 passed by learned Special Judge, CBI, Ranchi

being bad and not tenable in the eye of law be dismissed.

Mrs. Nitu Sinha, learned counsel appearing for the C.B.I. on the other hand defended the impugned order dated 25.09.2020 passed by learned

Special Judge, CBI, Ranchi in connection with FIR No. RC 17 (A) of 2016 R-CBI/ACB/RANCHI corresponding to Regular CBI Case No. RC

17(A) of 2016-R and submits that the facts of this case is entirely different from the facts of Raghuvansh Dewanchand Bhasin vs. State of

Maharastra & Anr. (supra) as that was a complaint case involving a minor offence punishable under Section 324 of the Indian Penal Code and also

bailable offence that too against an Advocate in a trivial occurrence which took place in an Elite Club of Mumbai whereas the offences involved in

this case is of very serious nature and it is a crime against the society of amassing disproportionate assets worth Rs.1,96,97,628/- punishable under the

penal provisions of Prevention of Corruption Act, 1988 and in this case unlike Raghuvansh Dewanchand Bhasin vs. State of Maharastra & Anr.

(supra) summons were issued and undisputedly summons were received by the petitioners but admittedly the petitioners did not appear in the trial

court. So the natural course under such circumstances for the trial court was to issue non-bailable warrants of arrest and the learned trial court having

so done, there is no illegality in the said order passed by the learned trial court. Hence, it is submitted that this petition being without any merit be

dismissed.

Having heard the submissions made at the Bar and after going through the materials available in record, this Court is of the considered view that as

rightly submitted by the learned counsel for the C.B.I., the facts of this case is entirely different from the case of Raghuvansh Dewanchand Bhasin

vs. State of Maharastra & Anr. (supra) and undisputedly, though the petitioners were aware that they were to appear in the trial court by 25.09.2020

still they did not choose to appear before the learned trial court and by that time the anticipatory bail filed by them was rejected and only because they

have applied for a certified copy that do not confer any right to them to not appear in the court in response to the summons issued by the court, when

no relief was given to them either by way of interim order or otherwise in the anticipatory bail applications.

Under such circumstances, undisputedly, the petitioners having not appeared in the court in response to the summons even though they have

admittedly received it, this Court does not find any perversity or gross illegality in the impugned order 25.09.2020 passed by learned Special Judge,

CBI, Ranchi in connection with FIR No. RC 17 (A) of 2016 R-CBI/ACB/RANCHI corresponding to Regular CBI Case No. RC 17(A) of 2016-R.

Accordingly, this Court is of the considered view that the said order does not warrant any interference by this Court in exercise of power under

Section 482 Cr.P.C.

Accordingly, this criminal miscellaneous petition being without any merit is dismissed.