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Madhya Pradesh High Court

Smt. Manjri Choudhary vs Central Bureau Of Investigation on 16 January, 2018

                                            M.Cr.C.No.10846/2017

  HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
     (Single Bench Hon'ble Shri. P.K. Jaiswal, J.)

            M.Cr.C. No.10846/2017

                   SMT. MANJRI CHOUDHARY
                            VERSUS
 CBI, BANK SECURITIES & FRAUD CELL, NEW DELHI
                       ******
     Shri Vikram Choudhary, learned Senior counsel
with Shri Anil Ojha, Advocate, Shri Sudhanshu Vyas,
Advocate, Shri Harshit Sethi, Advocate, Shri Rishi
Sehgal, Advocate and Ms. Shradha Singh, Advocate for
the applicant.
      Shri Deepak Rawal, learned A.S.G. for respondent /
State.
                              ******
                              ORDER

(16.1.2018) This is second repeat application for grant of anticipatory bail by applicant - Smt. Manjri Choudhary, wife of Shri Vijay Madanlal Choudhary, who is apprehending her arrest in connection with Crime No.RC BD1/2014/E/0008, registered by CBI, BS & FC, New Delhi, for the offence punishable under Sections 420, 468, 471, 120B and 467 of IPC.

2. Her first application was dismissed on merit by order dated 11.8.2017 passed in M.Cr.C.No.5418/2017, which reads as under :-

"Petitioner - Smt. Manjri Choudhary, wife of Shri Vijay Madanlal Choudhary, is apprehending her arrest in Special Case No.2/15 (Crime No.RC BD1/2014/E/0008) registered at police station CBI, BS & FC, New Delhi, for the offence punishable under Sections 420, 467, 468, 471 and 120-B, IPC.

2. M.Cr.C. No.5418/2017, is an application M.Cr.C.No.10846/2017 filed under Section 482 of Cr.P.C., whereby the petitioner is challenging the order dated 9.5.2017, passed by the Special Judicial Magistrate, CBI & Economic Offences, Indore, in Special Case No.162/2015, by which application under Section 88 of Cr.P.C, for cancellation of warrant of arrest issued against the petitioner has been dismissed.

3. Petitioner - Smt. Manjri Choudhary is the wife of Shri Vijay Madanlal Choudhary, who is one of the Director in M/s. Zoom Developers Pvt. Ltd. from 25.4.2011 on-wards, FIR's were registered by CBI against M/s. Zoom Developers Pvt. Ltd., its Director - Sharda Kabra, company secretary on the allegations of cheating and defrauding the consortium of Banks, so as to avail credit facilities.

4. On 14.8.2011, FIR No.499/11, registered at police station Palasia, for the offences under Sections 406, 420, 467, 468, 471 and 120-B of IPC against the present petitioner, her husband - Vijay Madanlal Choudhary, B.L. Kejriwal and some bank officials. Thereafter, vide order dated 20.12.2011, the anticipatory applications of the petitioner and other were rejected by this court.

5. On 1.1.2013, on the complaint of Union Bank of India, Mumbai, CBI has registered a case bearing RC No.BD1/2013/E/0001, for the offence under Section 120-B, read with Section 420, IPC. 6. Pursuant to taking over of investigation in FIR No.49/11, at police station - Palasia by CBI, on 20.11.2014, the CBI B.S & F.S., New Delhi, re-registered the instant case vide R.C. No.BD1/2013/E/0001 dated 12.11.2014.

7. The charge - sheet was filed by the CBI on 29.5.2015, before the Special Judicial Magistrate CBI and Economic Offence, Indore. The learned Court took cognizance in the case under Sections 420, 471, 468 and 120-B, IPC.

Before filing of charge sheet, the petitioner(s)/accused including the present petitioner were given notice by the CBI to appear before the learned Special Judge, but they did not appear on the fixed date, consequently, learned Special Judicial Magistrate, CBI, Court issued arrest warrant against the petitioner and other co-accused persons. The case is pending for the last two years for the appearance of the petitioner and M.Cr.C.No.10846/2017 other co-accused.

8. The petitioner and her husband co- accused Vijay Madanlal Choudhary, had filed a transfer petition bearing transfer petition (Crl.) No.368/2015, before the Apex Court seeking the transfer of the case from the Court at Indore to the court of competent jurisdiction at Mumbai. On 26.10.2015, the Apex Court was pleased to issue notice and was further pleased to stay all further proceeding in the trial against the petitioner. In the meantime, the learned Special Magistrate took cognizance in the case and issued arrest warrants against the petitioner and other co-accused persons. Vide order dated 7.11.2015, in view of the stay granted by the Apex court, the learned Magistrate has recalled the said warrant.

9. On 1.3.2017, the Hon'ble Supreme court dismissed the transfer petition (Cri) No.368/2015. Order dated 1.3.2017 passed by the Apex court in TP (Cri) Nos.366/15, 368/15 reads as under :-

"Heard the learned counsel for the parties. We find no merit. The transfer petitions are dismissed. Consequently, all pending applications are disposed of."

10. The petitioner along with her husband Vijay Madanlal Choudhary, filed an application with a prayer to fix a date for their appearance with the permission to execute bond for their appearance before the learned Magistrate under Section 88 of Cr.P.C.

11. The application was opposed by the non- applicant / respondent CBI, on the ground that petitioner(s) has not complied with any of the process of court. The petitioner and other co- accused persons have not appeared before the learned Special Judge for the last two years. The petitioner and her husband were not present before the Special Judge even at the time of presentation of the application, at the time of filing of charge sheet, the petitioner and her husband were given notice to appear before the Special Judge, but they did not comply and prayed for rejection of the application.

12. The learned Special Judge considering the fact that the case is pending for the last two years for appearance of the accused. The petitioner was not present before the learned Special Judge at the time of filing of the application and she and M.Cr.C.No.10846/2017 other co-accused persons are willfully disobeying the order passed by the learned Special Magistrate, regarding their appearance in the court. She is avoiding her appearance for the last two years. The application presented by the petitioner for cancellation of arrest warrant has been dismissed by the learned Special Magistrate. Even after rejection of the said application, the petitioner and other co-accused persons have not appeared before the learned Magistrate. There are serious charges against the petitioner under Sections 420, 471, 468 and 120B, IPC and the application filed by the petitioner under Section 88 of Cr.P.C., has been rejected.

13. Normally, the Court of Sessions shall be first approached for moving anticipatory bail application. An application for anticipatory bail shall be filed in the court of Sessions unless special circumstances exist for filing in High Court. In the present case, the petitioner instead of filing of application for grant of anticipatory bail before the Court of Session has directly filed this application before this court, without assigning any special circumstances.

14. Shri D. Rawal, learned ASG vehemently opposed the prayer for grant of anticipatory bail and submits that a proper course for the petitioner is to file an application before the learned Special Judge and in case her application is rejected then, she may challenge the said order by filing the application under Section 438 of Cr.P.C. for grant of anticipatory bail before this court. He submits that though the Sessions Court and High court have concurrent jurisdiction in the matter to grant an anticipatory bail, but in view of the law laid down by the Apex Court and High Court unless special circumstances exist, an application for anticipatory bail shall be filed in the court of Sessions and prayed for rejection of the anticipatory bail application.

15. In the present case, the petitioner neither was present before the Special Judicial Magistrate at the time of filing of the application nor she was present when the charge sheet was filed. As per record, the petitioner was not appearing before the Special Judicial Magistrate therefore, the court of Special Judicial Magistrate dismissed the application for cancellation of the arrest warrant vide order dated 30.6.2015.

16. A Magistrate who issues a warrant knows M.Cr.C.No.10846/2017 fully why the accused is avoiding to remain present before the Court and non-appearance causes obstruction in the smooth working of the Court. It is a hurdle in speedy disposal of the matter and therefore the Magistrate issues non- bailable warrant. On number of occasions, a Magistrate is constrained to issue non-bailable warrant to compel a person to appear before the Court as the trial is at a standstill for want of appearance.

17. In respect of rejection of application filed under Section 88 of Cr.P.C, the learned Senior counsel for the petitioner has submitted that the present petitioner is having two unmarried daughters and her husband is in judicial custody and except her there is no body in the family to look after them and submits that the order dated 9.5.2017 be set aside and she be permitted to appear before the learned Special Magistrate with the permission to execute her bond before the court.

18. From the fact of events, it appears that the present petitioner is avoiding her appearance before the learned Special Judicial Magistrate for one or other reason. On 29.5.2015, when the charge sheet was filed, she was absent before the learned Special Judicial Magistrate. Thereafter, the learned Special Judicial Magistrate issued arrest warrant against her, but she failed to appear and filed transfer petition, which was dismissed by the Apex Court on 1.3.2017. At the time of filing of application under Section 88 of Cr.P.C she was not present. On 9.5.2017, when the matter was heard and argued on her behalf and order was passed, she was not present. It appears that she is avoiding her arrest in the case.

19. Having considered the submission made by the learned counsel for the parties and after considering the gravity of the offence, circumstances of the case particularly, the allegation of misappropriation of public fund and further considering the conduct of the petitioner and the fact that investigation is held up, I am of the view that, no case for quashment or setting aside of the order dated 9.5.2017 (Annexure P/1), passed by the learned Special Judicial Magistrate, CBI and Economic Offences, Indore and the consequential warrants of arrest issued against the petitioner is made out. M.Cr.C.No.5418/2017, has no merit and is, accordingly, dismissed.

20. In respect of prayer for grant of anticipatory bail, the proper course of action for the petitioner is to file an application for grant of anticipatory bail before the court of Sessions. However, the liberty is granted to the petitioner to avail the proper course of action by filing an appropriate application in accordance with law, before the court of Sessions for grant of anticipatory bail.

21. With the aforesaid liberty, M.Cr.C.No.5674/2017 is disposed of."

3. Learned Senior counsel for the applicant has submitted that the applicant has never been absconder and repeatedly joined with the investigation with the CBI. On 2.5.2017, when her husband Vijay Choudhary was arrested, she was present with her husband in CBI Office at Mumbai. She is suffering from serious ailment of shoulder (rotator cuff tear) for which she had to undergo surgery about a year back in March 2016 and she had remained hospitalized for a long duration. She is also suffering from spondylosis, which as further severely affected her normal day to day living. She being Sleeping Director / Promoter of the Company and there is no legal evidence against her. With the aforesaid, he prays that this application for grant of anticipatory bail be allowed.

4. Shri Deepak Rawal, learned ASG has submitted that application for anticipatory bail has been dismissed by this court vide order dated 11.8.2017. There is no change in the circumstances to consider this repeat anticipatory bail application. Proceedings has been initiated against her under Section 83 of Cr.P.C., which is still going on, the learned trial court in a proceeding under Section 82 of Cr.P.C., fixed the case for M.Cr.C.No.10846/2017 appearance on 17.1.2018.

5. In view of the law laid down by the Supreme Court in the case of State of M.P. V/s. Pradeep Sharma, passed in Criminal Appeal No.2049/2013 dated 6.12.2013, the Apex court was of the view that once a person is declared as an absconder/proclaimed offender in a criminal case, he/she will not be entitled to the relief of anticipatory bail, the Supreme Court has held thus :-

"When the accused is absconding and declared as a 'proclaimed offender,' there is no question of granting anticipatory bail. We reiterate that when a person against whom a warrant had been issued and is absconding or concealing himself in order to avoid execution of warrant and declared as a proclaimed offender in terms of Section 82 of the Cr.P.C., he is not entitled to the relief of anticipatory bail."

"The power exercisable under Section 438 of the Cr.P.C. [relating to anticipatory bail] is somewhat extraordinary in character and it is to be exercised only in exceptional cases."

6. In Adri Dharan Das V/s. State of W.B. reported as (2005) 4 SCC 303, this Court considered the scope of Section 438 of the Code as under:-

"16. Section 438 is a procedural provision which is concerned with the personal liberty of an individual who is entitled to plead innocence, since he is not on the date of application for exercise of power under Section 438 of the Code convicted for the offence in respect of which he seeks bail. The applicant must show that he has "reason to believe" that he may be arrested in a non-bailable offence. Use of the expression "reason to believe" shows that the belief that the applicant may be arrested must be founded on reasonable grounds. Mere "fear" is not "belief" for which reason it is not enough for the applicant to show that he has some sort of vague apprehension that someone is going to make an accusation against him in pursuance of which he may be arrested. Grounds on M.Cr.C.No.10846/2017 which the belief of the applicant is based that he may be arrested in non-bailable offence must be capable of being examined. If an application is made to the High Court or the Court of Session, it is for the court concerned to decide whether a case has been made out for granting of the relief sought.

7. Recently, in Lavesh vs. State (NCT of Delhi), (2012) 8 SCC 730, this Court, (of which both of us were parties) considered the scope of granting relief under Section 438 vis-à-vis to a person who was declared as an absconder or proclaimed offender in terms of Section 82 of the Code. In para 12, this Court held as under:

"12. From these materials and information, it is clear that the present appellant was not available for interrogation and investigation and was declared as "absconder". Normally, when the accused is "absconding" and declared as a "proclaimed offender", there is no question of granting anticipatory bail. We reiterate that when a person against whom a warrant had been issued and is absconding or concealing himself in order to avoid execution of warrant and declared as a proclaimed offender in terms of Section 82 of the Code he is not entitled to the relief of anticipatory bail."

It is clear from the above decision that if anyone is declared as an absconder/proclaimed offender in terms of Section 82 of the Code, he is not entitled to the relief of anticipatory bail. In the case on hand, a perusal of the materials i.e., confessional statements of Sanjay Namdev, Pawan Kumar @ Ravi and Vijay @ Monu Brahambhatt reveals that the respondents administered poisonous substance to the deceased. Further, the statements of witnesses that were recorded and the report of the Department of Forensic Medicine & Toxicology Government Medical College & Hospital, Nagpur dated 21.03.2012 have confirmed the existence of poison in milk rabri. Further, it is brought to our notice that warrants were issued on 21.11.2012 for the arrest of the respondents herein. Since they were not available/traceable, a proclamation under M.Cr.C.No.10846/2017 Section 82 of the Code was issued on 29.11.2012. The documents (Annexure-P13) produced by the State clearly show that the CJM, Chhindwara, M.P. issued a proclamation requiring the appearance of both the respondents/accused under Section 82 of the Code to answer the complaint on 29.12.2012. All these materials were neither adverted to nor considered by the High Court while granting anticipatory bail and the High Court, without indicating any reason except stating "facts and circumstances of the case", granted an order of anticipatory bail to both the accused. It is relevant to point out that both the accused are facing prosecution for offences punishable under Sections 302 and 120B read with Section 34 of IPC. In such serious offences, particularly, the respondents/accused being proclaimed offenders, we are unable to sustain the impugned orders of granting anticipatory bail. The High Court failed to appreciate that it is a settled position of law that where the accused has been declared as an absconder and has not cooperated with the investigation, he should not be granted anticipatory bail.

8. In view of the law laid down by the Apex court and the arguments advanced by the learned counsel for the parties as well as looking to the gravity of the offence and circumstances of the case particularly the allegation of misappropriation of public funds, so also the fact that due to non-cooperation of the applicant, the investigation is held up, I am of the considered opinion that there is no change in the circumstances to consider this repeat application.

9. M.Cr.C.No.10846/2017, deserves to be dismissed and is accordingly, dismissed. However, liberty is granted to the applicant to surrender and apply for grant of regular bail before the trial court. In case, the applicant surrender and applies for grant of regular bail, her M.Cr.C.No.10846/2017 application for grant of regular bail be disposed of expeditiously, as early as possible.

(P.K. JAISWAL) JUDGE SS/-

Shailesh DN: c=IN, o=High Court of Madhya Pradesh, ou=Administration, postalCode=452001, st=Madhya Pradesh, Sukhdev 2.5.4.20=b99d782efca3d28a06cad df3fa57b98c35054f3dd8638f2f98df 0172d29e61c2, cn=Shailesh Sukhdev Date: 2018.01.20 12:46:56 +05'30' M.Cr.C.No.10846/2017 M.Cr.C. No.10846/2017 4.1.2018 Shri Vikram Choudhary, learned Senior counsel with Shri Anil Ojha, Advocate, Shri Sudhanshu Vyas, Advocate, Shri Harshit Sethi, Advocate, Shri Rishi Sehgal, Advocate and Ms. Shradha Singh, Advocate for the applicant.

Shri Deepak Rawal, learned A.S.G. for respondent / State.

Heard.

Reserved for orders.

(P.K. JAISWAL) JUDGE ss/-

HIGH COURT OF MADHYA PRADESH : INDORE BENCH, INDORE (Single Bench Hon'ble Justice Mr. P.K. Jaiswal) M.Cr.C. No.10846/2017 SMT. MANJRI CHOUDHARY VERSUS CBI, BANK SECURITIES & FRAUD CELL, NEW DELHI ****** Post for : /1/2018 (P.K. JAISWAL) JUDGE .1.2018