Swetabh Suman vs Central Bureau of Investigation

Barin Ghosh, C.J.—Yesterday, I dictated an order in the Court. By that, I permitted four weeks'' time to the applicants to obtain bail, but, at the same time, provided that the applicants shall not be arrested for five weeks and, even if a decision is taken to take the applicants in custody, the said decision shall remain postponed till five weeks. While the order came up before me for my signature, it appeared that the same is not a permissible order, as the same will interfere with a perfectly valid decision to be taken by a competent court subsequent to that order, but, by virtue of the order passed, the same will remain of no effect at least till such time, the time as directed by this Court will expire. I, accordingly, did not sign that order and, at the same time, informed the learned Counsel for the parties that the matters will be considered on merit today.

Heard learned Counsel for the parties. Considered the orders impugned in these Applications passed on 3rd March, 2011. Before the said orders were passed, there is no dispute that after the Central Bureau of Investigation submitted a police report, the Special Judge duly took cognizance thereon. Subsequent thereto, Special Judge issued summons. In the summons issued on 21st September, 2010, the applicants were asked to appear before the Special Judge on 3rd November, 2010, either in person or through Advocate to be engaged by the applicants. The applicants caused their appearance through Advocate on 3rd November, 2010 and, at the same time, applied for exemption of their personal appearance. Such exemption was granted by an order, whereby, it was mentioned that the applicants would be required to appear on 6th December, 2010. Before 6th December, 2010, by virtue of an order passed by this Court on a separate proceeding, the proceedings before the Special Judge were stayed. That stay order was vacated subsequent thereto. The order of vacation of the said stay order was brought to the knowledge of the Special Judge by the Central Bureau of Investigation by filing an application seeking non-bailable warrants against the applicants, which was considered on 31st January, 2011, when he directed appearance of the applicants on 3rd March, 2011. On 3rd March, 2011, the applicants, through their Advocate, filed an application for exemption. Purporting to have rejected the said application, by the impugned order dated 3rd March, 2011, the Special Judge directed issuance of non-bailable warrants against the applicants with a further direction for production of the applicants on 1st April, 2011.

As will be evidenced from the impugned order, the Special Judge was of the view that by the order dated 3rd November, 2010, the applicants were asked to cause appearance, which the applicants had failed to do. As aforesaid, on 3rd November, 2010, two things happened, namely, grant of exemption to the applicants by the Special Judge of their appearance on the said date and fixation of appearance of the applicants on 6th December, 2010. Inasmuch as, before 6th December, 2010, the proceedings before the Special Judge were stayed, the question of the applicants appearing before the Special Judge on 6th December, 2010 did not arise. After the stay was vacated by this Court, the Special Judge could proceed with the matter before him and, accordingly, on 31st January, 2011, he directed appearance of the applicants on 3rd March, 2011. On 3rd March, 2011, applicants filed an exemption application. It was well within the competence of the Special Judge to accede to the prayer made in the exemption application or to reject the same holding that the reasons furnished for exemption are not sufficient. Instead of doing that, while passing the order impugned dated 3rd March, 2011, Special Judge proceeded on the basis that since the applicants were asked on 3rd November, 2010 to cause their appearance before him on 3rd March, 2011 and since the applicants have not caused such appearance, non-bailable warrants against the applicants are called for. While doing so, the Special Judge did not record that the reasons for seeking exemption are insufficient.

Furthermore, before directing issuance of non-bailable warrants, Special Judge did not take note of the necessity of issuance of such a warrant, particularly in view of the fact, as submitted on behalf of the applicants, that the applicants were not arrested in course of investigation, which suggests that they fully cooperated with the investigation.

Be that as it may, the order impugned appears to be without application of mind and, accordingly, the same is set aside, insofar as the applicants are concerned. Let the applicants cause their appearance before the Special Judge on or before 4th April, 2011.

In view of the order as above, there are now no non-bailable warrants of arrest against the applicants and, accordingly, there is now no apprehension of the applicants being arrested. It shall be open for the applicants to apply for bail no sooner they cause appearance. In the event, such bail applications are filed, the court shall decide the same in accordance with law on the same day itself. It is made clear that in the matter of opposing the bail applications, if any, to be filed by the applicants, it shall be open to the Central Bureau of Investigation to rely upon the entire records of the case, including the application filed by them for issuance of non-bailable warrants of arrest.

The Applications stand disposed of accordingly.