Rajasthan High Court - Jaipur
Girdhar Gopal Bajoria S/O Shri R P ... vs Rajesh Kumar Sharma Assistant Director on 23 September, 2021
Author: Manoj Kumar Vyas
Bench: Vijay Bishnoi, Manoj Kumar Vyas
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Revision Petition No. 731/2021
Girdhar Gopal Bajoria S/o Shri R P Bajoria, The Then Managing
Director Of M/s Agribiotech Industries Ltd., Resident Of Plot No.
1, Ganesh Colony, Moti Dungri Road, Jaipur
----Petitioner
Versus
Rajesh Kumar Sharma, Assistant Director, Directorate Of
Enforcement, 2nd Floor, Jeevan Nidhi-II, L.I.C. Building, Bhawani
Singh Road, Jaipur
----Respondent
Connected With S.B. Criminal Revision Petition No. 732/2021
1.M/s Agribiotech Industries Ltd., Ajitgarh Sikar, Plot No. S P- 156, RIICO Industrial Area, Ajitgarh, District Sikar, Rajasthan through its Managing Director Shri Ashutosh Bajoria.
2. Ashutosh Bajoria S/o Shri Gopal Bajoria resident of Plot No.404, Nemi Sagar Colony, Vaishali Nagar, Jaipur.
----Petitioners Versus Rajesh Kumar Sharma, Assistant Director Directorate Of Enforcement, 2nd Floor, Jeevan Nidhi-II, L.I.C. Building, Bhawani Singh Road, Jaipur
----Respondent For Petitioner(s) : Mr. S. S. Hora, Advocate Mr. Arun Goyal, Advocate Mr. T. C. Sharma, Advocate For Respondent(s) : Mr. R. D. Rastogi, ASG with Mr. Naman Deep Singh HON'BLE MR. JUSTICE MANOJ KUMAR VYAS Order Date of Pronouncement : 23.09.2021 S.B. Crl. Misc. Stay Application No. 3791/2021 S.B. Crl. Misc. Stay Application No. 3792/2021 (Downloaded on 24/09/2021 at 10:26:41 PM) (2 of 16) [CRLR-731/2021] Both the Criminal Misc. Stay Applications in Revision Petition Nos. 731/2021 and 732/2021, filed against impugned order dated 12.07.2021, are being disposed of by this common order.
Vide impugned order dated 12.07.2021 learned Sessions Judge, PMLA 2002/ Special Judge CBI Cases No.3, Jaipur Metro-I, in Complaint Case No.03/2021, has taken cognizance against the accused-persons, petitioners herein, for offence under Section 3 read with Section 4 of the Prevention of Money Laundering Act, 2002 (hereinafter referred as 'the PML Act') and the petitioners have been summoned by way of arrest warrants.
It has been submitted that a strong prima facie case is made out in favour of the petitioners and the criminal revision petitions may be treated as part and parcel of the stay applications. It has further been submitted that if interim order is not granted, the petitioners will suffer irreparable loss, therefore, the stay applications have been filed with following prayer :-
"It is, therefore, humbly prayed that Your Lordships may be pleased to stay order dated 12.07.2021 (Annexure-4) passed by learned Sessions Judge, PMLA 2002 / Special Judge CBI Cases No.3, Jaipur Metro-I in Criminal Complaint no. 3/2021 as also the arrest warrant issued against the petitioners.
Any other interim order which this Hon'ble Court may deem fit in the facts and circumstances of the present case may kindly be passed in favour of the petitioners- applicants."
According to the brief facts of the revision petitions, case of the petitioners is that a criminal complaint registered under Section 43, for contravention of Section 24 of Water (Prevention and Control of Pollution) Act 1974, only could attract any action under the PML Act only for the period for which such (Downloaded on 24/09/2021 at 10:26:41 PM) (3 of 16) [CRLR-731/2021] offence is alleged to be committed and value of proceeds, if any, generated during that impugned period only.
Learned counsel for the petitioners have submitted that the order by which cognizance has been taken, is bad in law as no offence punishable under Sections 3 and 4 of the PML Act is disclosed and, therefore, the cognizance order deserves to be quashed and set aside.
It has further been submitted that the learned court below has not considered the fact that the complainant has failed to bring on record any material against the petitioners even prima facie, to support the complaint or connect the petitioners with any offence under the provisions of the PML Act. The complaint filed by the Pollution Control Board under Section 173(2) of the Code of Criminal Procedure, does not show commission of any scheduled offence by the petitioners. The petitioners are not involved in any of the processes of money laundering including placement, layering and integration of any proceeds of crime. The complaint has been filed on the basis of surmises. Contravention of any of the provisions of the Environment (Protection) Act, 1986 (hereinafter referred as "the Act of 1986") would make a person liable for penalty under Section 15, but invocation of Section 15 on standalone basis is not a scheduled offence. It is only when there is contravention of Section 7 or 8 of the Act of 1986, the offence would fall under paragraph 25 of part A of Schedule to the PML Act. No such contravention of the provision of Section 7 or Section 8 even finds mention in the criminal complaint No.157/2010. The statutory body holding authority under the Act of 1986, had sought punishment under Section 15 and 19 of the Act of 1986 only, and that too for a limited period. Thus, the (Downloaded on 24/09/2021 at 10:26:41 PM) (4 of 16) [CRLR-731/2021] alleged complaint has not been filed for contravention of any of the scheduled offences. Even, it is admitted fact that the petitioners have no connection with the company namely, M/s Agribiotech Industries Ltd after June 2008. Commission of a scheduled offence is the fundamental condition for giving rise to proceeds of crime and consequently, the application of Section 3.
There are several judgments of this court converting a non-bailable warrant into bailable warrant under the PML Act. The facts of the case relied upon by the respondent in the case of Dr. Ashok Singhvi v. Union of India (S.B. Criminal Misc. Bail Application No. 6273/2020, decided on 06.07.2020) do not apply to the facts of this case. No arrest warrant could have been directly issued, as per the decision of Hon'ble Supreme Court in Inder Mohan Goswami v. State of Uttaranchal, (2007) 12 SCC 1. Hence, it is prayed in the stay applications that the impugned order and arrest warrant issued against the petitioners, may be stayed till disposal of the revision petitions.
Following judgments have been relied upon in support of the contentions raised in favour of the petitioners :-
(i) Siddharth v. State of Uttar Pradesh and Anr.
2021 SCC Online SC 615
(ii) Aman Preet Singh v. CBI through Director Criminal Appeal No. 929/2021 - SC - on 02.09.2021
(iii) Satender Kumar Antil v. C.B.I. and Anr.
Special leave to Appeal (Crl.) No.(s) 5191/2021 - SC - on 28.07.2021
(iv) Rameshwar Sharma v. Union of India & Ors.
S.B. Civil Misc. Writ Petition No. 16141/2017 - RHC - 21.05.2021
(v) Gaurav Sharma v. State of Uttar Pradesh & Ors.
Writ Petition(s) Criminal No.(s) 189/2021 - SC - 06.05.2021
(vi) Shyam Sunder Singhvi v. Union of India Special Leave to Appeal (Crl.) No.(s) 784/2020 -
SC - 03.02.2020
(Downloaded on 24/09/2021 at 10:26:41 PM)
(5 of 16) [CRLR-731/2021]
(vii) Mahesh Mudgal v. Alok Kumar Mathur S.B. Criminal Misc. (Petition) No. 2044/2019 - RHC - 11.06.2019
(viii) K Jacob John & Anr. v. Rajesh Kumar Sharma S.B. Criminal Misc. (Petition) No. 1892/2019 - RHC - 17.05.2019
(ix) M/s Agribiotech Industries Pvt. Ltd. v. The Deputy Director Directorate of Enforcement, Jaipur MP-PMLA-5995/JP/2019 (U.H.) - 01.05.2019 [Appellate Tribunal, Prevention of Money Laundering Act at New Delhi]
(x) Smt. Sandhya Sharma & Anr v. State of Raj. & Anr S.B. Criminal Revision Petition No. 533/2019 - RHC - on 12.03.2019
(xi) Dinesh Kumar Verma v. Assistant Director Enforcement Directorate S.B. Criminal Misc. (Petition) No. 773/2019 - RHC - 04.02.2019
(xii) Ramesh Chand Sharma v. Mukesh Kumar Meena S.B. Criminal Misc. (Petition) No. 429/2019 - RHC - 25.01.2019
(xiii) Vimal Singhi v. Mukesh Kumar Meena S.B. Criminal Misc. (Petition) No. 216/2019 - RHC - 10.01.2019
(xiv) Pushpendera Agawal v. Mukesh Kumar Meena S.B. Criminal Misc. (Petition) No. 7892/2018 - RHC - 17.12.2018
(xv) Oro Trade Network (India) Ltd. & Ors v. State of Rajasthan & Anr.
(S.B. Criminal Revision No. 1915/2018 - RHC - 01.12.2018 (xvi) Satpal Rana v. Uma Nand Vijay S.B. Criminal Misc. Bail No. 11261/2018 - RHC - 18.09.2018 (xvii) Assistant Director, Enforcement Directorate v.
Surendra Kumar Sharma & Anr.
Special Leave Petition (Criminal) Diary No. 22530/2018 - SC - 23.07.2018 (xviii) Pushya Mitra Singh Deo v. Union of India S.B. Criminal Misc. (Petition) No. 2097/2018 - RHC - 09.05.2018 (xix) Surendra Kumar Sharma & Anr. v. Ms. Annupama Saxena S.B. Criminal Misc. (Petition) No. 5068/2017 -
RHC - 11.10.2017
(xx) Vikas v. State of Rajasthan
(2014) 3 SCC 321
(xxi) Pankaj Pratap Bhai Thakkar & 6 v. Deputy Director & 1.
2014 SCC OnLine Guj 13726 (Downloaded on 24/09/2021 at 10:26:41 PM) (6 of 16) [CRLR-731/2021] (xxii) Raghuvansh Dewanchand Bhasin v. State of Maharashtra & Anr.
(2012) 9 SCC 791 (xxiii) Dhariwal Tobacco Products Limited & Ors. v. State of Maharashtra & Anr.
(2009) 2 SCC 370 (xxiv) Inder Mohan Goswami & Anr. v. State of Uttranchal & Ors (2007) 12 SCC 1 (xxv) Court On Its Own Motion v. Central Bureau of Investigation (2004) 72 DRJ 629 (xxvi) Madhu Limaye v. State of Maharashta (1977) 4 SCC 551 In reply, it has been submitted by learned counsel appearing for the respondent that a prima facie case is established against the petitioners.
A bare perusal of the order dated 12.07.2021 would reveal that learned court below has passed a reasoned and speaking order after due application of mind and found a prima facie case against the petitioners. Even the Hon'ble Apex Court in the case of Kanti Bhadra Shah v. State of W.B. (2000) 1 SCC 722, has held that there is no requirement for the court below to write detailed orders at the stage of taking cognizance or issuing process. The revisional jurisdiction of the court under Section 397 read with Section 401 of Cr.P.C. is very limited. Further, it has been submitted that in this case the petitioners have approached this court directly without availing the statutory remedy available to them under Section 70(2) of Cr.P.C. Reliance placed upon the judgment of Inder Mohan Goswami v. State of Uttaranchal (supra), is also misplaced as the said judgment has already been considered and distinguished by this court in Pooran Singh v. State of Rajasthan (S.B. Criminal Misc. Petition No.474/2010 decided on 25.05.2010) and Shyam Sundar Singhvi v. Union of (Downloaded on 24/09/2021 at 10:26:41 PM) (7 of 16) [CRLR-731/2021] India (S.B. Criminal Revision Petition No.273/2019 decided on 24.01.2020).
Otherwise also, under the provisions of Section 204 of Cr.P.C., it is the discretion of a Magistrate to call a person either through summons or warrants, as the case may be, if there is sufficient ground for proceeding against an accused. It is a settled position of law that while exercising revisional jurisdiction under Section 397 read with Section 401 of Cr.P.C., scope of interference with issuance of process, is very limited. Learned court below has discussed the role of petitioners in commission of a serious economic offence. It is also a settled proposition of law that economic offences are to be dealt with a stricter approach since they are designed to affect the economic fabric of the country. Hon'ble Apex Court has also taken a similar view in several cases. It is also submitted that the PML Act is a complete code and provisions of Cr.P.C. shall apply only to the extent it is not inconsistent with the provisions of PML Act. Section 71 of the PML Act also provides for an overriding effect of PML Act. Similar view has been held by Hon'ble Apex Court in the case of Gautam Kundu v. Directorate of Enforcement (2015) 16 SCC 1, and has clearly held that the provisions of Cr.P.C. shall apply only to the extent it is not inconsistent with the provisions of PML Act.
As per Section 24 of the PML Act, burden of proof is upon the accused person to show that he was not involved in commission of an offence under Section 3 of the PML Act. Section 24 clearly states that the court shall, unless the contrary is proved, presume that such proceeds of crime are involved in money laundering. It is further argued that the contention of the petitioners that invocation of Section 15 of the Act of 1986 on (Downloaded on 24/09/2021 at 10:26:41 PM) (8 of 16) [CRLR-731/2021] standalone basis is not a scheduled offence, is totally misconceived and baseless. In quite express terms, Section 15 prescribes punishment for contravention of Sections 7 and 8 of the Act of 1986, which is well covered within the ambit of the scheduled offence under paragraph 25 of Part A of the Schedule to the PML Act. The impugned order has been passed after taking into account all relevant facts and material available on the record. The petitioners have not, prima facie, proved that any legal ground exists for staying the impugned order or issuance of the arrest warrant in consequence of the cognizance order. Therefore, the stay application is liable to be dismissed.
In support of their contentions, following judgments have been relied upon :-
(i) Kanti Bhadra Shah and anr. v. State of W.B. (2000) 1 SCC 722
(ii) Himanshu @ Hemant Rajendra Bhatt v. State of Maharashtra 2015 (2) Mh. L.J. 84
(iii) Amit Kapoor v. Ramesh Chander and anr.
(2012) 9 SCC 460
(iv) A.K. Subbaiah and ors. v. State of Karnataka and ors.
(1987) 4 SCC 557
(v) Pooran Singh and anr. v. State of Rajasthan S.B. Criminal Misc. Petition No.474/2010 -
RHC - 25.05.2010
(vi) Shyam Sundar Singhvi v. Union of India S.B. Criminal Revision Petition No.273/201 -
RHC - 24.01.2020
(vii) Shyam Sunder Singhvi v. UOI
Special Leave to Appeal (Crl.) No. 792/2020 - SC - 10.02.2020
(viii) Babulal Verma and anr. v. Enforcement Directorate, Mumbai and anr.
Criminal Application (APL) No.201/2021 (Bombay High Court) - 16.03.2021
(ix) Municipal Corporation of Delhi v. Ram Kishan Rohatgi & ors.
(1983) 1 SCC 1
(x) Parbatbhai Aahir alias Parbatbhai Bhimsinghbhai Karmur and ors. v. State of Gujarat & anr.
(Downloaded on 24/09/2021 at 10:26:41 PM)
(9 of 16) [CRLR-731/2021]
(2017) 9 SCC 641
(xi) Chilakamarthi Venkateshwarlu & anr. v. State of A.P. & anr.
2019 SCC OnLine SC 948
(xii) Dineshbhai Chandubhai Patel v. State of Gujarat & ors.
(2018) 3 SCC 104
(xiii) State of Gujarat v. Mohanlal Jitamalji Porwal & anr.
(1987) 2 SCC 364
(xiv) Y.S. Jaganmohan Reddy v. Central Bureau of Investigation (2013) 7 SCC 439
(xv) Rohit Tandon v. Directorate of Enforcement (2018) 11 SCC 46 (xvi) Vijaya Bank v. Shyamal Kumar Lodh (2010) 7 SCC 635 (xvii) Anoop Bartaria v. Dy. Director, Enforcement Directorate, Jaipur and anr.
SB Criminal Writ No.704/2018 -
RHC - 21.02.2019 (xviii) Commissioner of Income Tax (Central)-I v. Vatika Township Private Limited (2015) 1 SCC 1 (xix) Union of India v. Sukumar Pyne AIR 1966 SC 1206 (xx) Madhu Limaye v. The State of Maharashtra (1977) 4 SCC 551 (xxi) Sakiri Vasu v. State of Uttar Pradesh and ors.
(2008) 2 SCC 409 (xxii) Manubhai v. Commissioner (Gujarat High Court) SCA/9651/2009 Date of Order - 14.05.2010 (xxiii) Dr. Ashok Singhvi v. Union of India S.B. Criminal Misc. Bail Application No. 6273/2020 - RHC - 06.07.2020
(xiv) State of Uttar Pradesh and ors. v. Sandeep Kumar Balmiki and ors.
(2009) 17 SCC 555
(xv) P. Chidambaram v. Directorate of Enforcement (2019) 9 SCC 24 Heard learned counsel for the parties and perused the record.
The revision petitions have been filed for setting aside the cognizance order dated 12.07.2021 and consequently for setting aside the order for issuance of non-bailable warrants for the appearance of petitioners. Learned court below has taken (Downloaded on 24/09/2021 at 10:26:41 PM) (10 of 16) [CRLR-731/2021] cognizance against the petitioners under Sections 3 and 4 of the PML Act and has issued non-bailable warrants against them for their appearance in the court.
Section 204 Cr.P.C. deals with issuance of process if a Magistrate takes cognizance of an offence. The relevant portion of Section 204 of Cr.P.C. is reproduced as under :-
"204. Issue of process.--
(1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be--
(a) a summons-case, he shall issue his summons for the attendance of the accused, or
(b) a warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction."
It has also been argued on behalf of learned counsel for the petitioners that the cognizance order is bad in law and, therefore, is liable to be quashed and operation of the impugned order may be stayed till disposal of the revision petitions and arrest warrants issued against the petitioners, may also be stayed. In this regard, reliance has been placed upon various judgments of Hon'ble Supreme Court as well as of this court.
In Siddharth v. State of Uttar Pradesh (supra), the Hon'ble Apex Court has held as under :-
14. In the present case when the appellant has joined the investigation, investigation has completed and he has been roped in after seven years of registration of the FIR we can think of no reason why at this stage he must be arrested before the chargesheet is taken on record. We may note that learned counsel for the appellant has already stated before us that on summons being issued the appellant will put the appearance before the trial court.
15. We accordingly set aside the impugned order and allow the appeal in terms aforesaid leaving the parties to bear their own costs.(Downloaded on 24/09/2021 at 10:26:41 PM)
(11 of 16) [CRLR-731/2021] Learned counsel for the petitioners have also relied upon judgment of Hon'ble Supreme Court in Inder Mohan Goswami v. State of Uttaranchal (supra). The relevant paras of the judgment read as under :-
"51. The issuance of non-bailable warrants involves interference with personal liberty. Arrest and imprisonment means deprivation of the most precious rights of an individual. Therefore, the courts have to be extremely careful before issuing non-bailable warrants.
52. Just as liberty is precious for an individual so is the interest of the society in maintaining law and order. Both are extremely important for the survival of a civilised society. Sometimes in the larger interest of the public and the State it becomes absolutely imperative to curtail freedom of an individual for a certain period, only then the non-bailable warrants should be issued.
When non-bailable warrants should be issued
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 the 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.
54. 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.
55. In complaint case, 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.
56. 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 an offence of a heinous crime and it is feared that he is likely to tamper or destroy the evidence (Downloaded on 24/09/2021 at 10:26:41 PM) (12 of 16) [CRLR-731/2021] or is likely to evade the process of law, issuance of non- bailable warrants should be avoided."
Learned counsel for the respondent has seriously opposed the prayer of the petitioners and submitted that cognizance has been taken against the petitioners for offence punishable under the provisions of the PML Act, which is a serious economic offence and having regard to the nature of allegations, the learned court below has not committed any legal error in issuing non-bailable warrants against the petitioners for securing their attendance before the court, as the Hon'ble Apex Court has held in several cases that economic offences stand on a separate footing as they affect economic fabric of the Nation. Following observations have been made by the Hon'ble Supreme Court in the judgment rendered in P. Chidambaram v. Directorate of Enforcement (supra) :-
"Observing that economic offences constitute a class apart and need to be visited with different approach in the matter of bail, in Y.S. Jagan Mohan Reddy v. CBI (2013) 7 SCC 439, the Supreme Court held as under: (SCC p. 449, paras 34-35) "34. Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offences having deep- rooted conspiracies and involving huge loss of public funds need to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country.
35. While granting bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations.""
It has further been argued that after issuance of non- bailable warrants, the remedy only lies under Section 70(2) of (Downloaded on 24/09/2021 at 10:26:41 PM) (13 of 16) [CRLR-731/2021] Cr.P.C., whereas the petitioners have directly approached this court without taking recourse to the remedy available under Section 70(2) of Cr.P.C., as has been held in the case of Himanshu @ Hemant Rajendra Bhatt v. State of Maharashtra 2015 (2) Mh. L.J. 84. Further, it is submitted that as per Section 204 of Cr.P.C., it is the discretion of the trial court to summon a person either through summons or bailable or non-bailable warrants. In this regard reliance has been placed on :-
(i) Pooran Singh v. State of Rajasthan (supra)
(ii) Shyam Sundar Singhvi v. Union of India (supra)
(iii) Shyam Sunder Singhvi v. UOI (supra) It has also been submitted that in Parbatbhai Aahir v.
State of Gujarat (2017) 9 SCC 641, it has been held that the High Court would be fully justified in refusing to quash the proceedings when the same relates to commission of economic offences. Economic offences are to be dealt with a stricter approach. In this regard, reliance has been placed on following judgments :-
(i) State of Gujarat v. Mohanlal Jitamalji Porwal (supra)
(ii) Y.S. Jaganmohan Reddy v. CBI (supra) Further, it has been submitted that the learned court below has rightly issued the non-bailable warrants as the provisions of Section 45 of the PML Act clearly mention that the offences are cognizable and non-bailable. The relevant portion of the provision reads as under :-
"Offences to be cognizable and non-bailable.
(1) [Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no person accused of an offence [under this Act] shall be released on bail or on his own bond unless--]
(i) the Public Prosecutor has been given an opportunity to oppose the application for such release; and
(ii) where the Public Prosecutor opposes the application, (Downloaded on 24/09/2021 at 10:26:41 PM) (14 of 16) [CRLR-731/2021] the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail:
Provided that a person, who, is under the age of sixteen years, or is a woman or is sick or infirm, [or is accused either on his own or along with other co-accused of money- laundering a sum of less than one crore rupees], may be released on bail, if the Special Court so directs:"
Therefore, learned court below was legally justified in issuing non-bailable warrants against the petitioners as the offence for which cognizance has been taken against the petitioners, is an economic offence punishable under Section 3 read with Section 4 of the PML Act and looking to the facts and circumstances of the case, it cannot be held that the order relating to issuance of non-bailable warrants has been passed without taking into consideration the entire relevant facts and circumstance of the case.
As per the judgment of Hon'ble Supreme Court in Inder Mohan Goswami v. State of Uttaranchal (supra), it is the duty of the trial court that there must be a proper scrutiny of facts and complete application of mind, before non-bailable warrant is issued. It has also been held that there cannot be any straightjacket formula for issuance of warrant, as a general rule, unless an accused is charged with commission of an offence of 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 warrant should be avoided, but in this case, coming to a prima facie satisfaction about the commission of offence under Sections 3/4 of the PML Act, the learned trial court has taken cognizance against the petitioners for the alleged crime and has issued non-bailable warrants against them.(Downloaded on 24/09/2021 at 10:26:41 PM)
(15 of 16) [CRLR-731/2021] The learned trial court has taken all relevant facts of the case into consideration while passing the impugned order. In this regard, in para 13 of the impugned order, the learned trial court has observed as under :-
Þvuqla/kku ds nkSjku vf/kfu;e 2002 dh /kkjk 50 esa ijh{k.k ds le; ifjokn esa ntZ vfHk;qDrx.k ds }kjk bl ifj'kksf/kr fLizV mRiknu gsrq vf/kdre ek=k 45 gtkj yhVj izfrfnu ckcr iz'ufpUg yxk;k tkuk mfpr izrhr ugha gksrk gSA vkS|ksfxd {ks= vthrx<+ esa vfHk;qDr dEiuh dks tks tehu vkoafVr dh xbZ mlesa Hkh 45000 yhVj izfrfnu vukt vk/kkfjr fMLVhyjh mRiknu djus gsrq Hkwfe vkoafVr djuk izrhr gksrk gSA foHkkx } kjk ifj'kksf/kr fLizV ds mRiknu ds laca/k esa tks fjdkWMZ rS;kj fd;k x;k gS mlds vuqlkj ifjokn esa vfHk;qDr dEiuh ds }kjk ifj'kksf/kr fLizV dh tks ek=k crk;h xbZ gS mldh iqf"V gksrh gSA bl nLrkost dks ifjokn ds lkFk vkj;wMh&26 ds :i esa izLrqr fd;k gSA dsUnzh; oLrq ,oa lsokdj vads{k.k vk;qDrky;] t;iqj }kjk tks lwpuk ifjoknh dks miyC/k djk;h xbZ gS mlds vuqlkj 8]30]15]164@& :i;s dk vfrfjDr ykHk vftZr fd;k x;k vkSj bl nLrkost dks ifjokn ds lkFk vkj;wMh&28 ds :i esa layXu fd;k x;k gSA eSllZ ,xzhck;ksVSd b.MLVªht fy0] vthrx<+] lhdj us izpfyr fof/k ds rgr fu/kkZfjr mfpr bZVhih izfØ;k ds ctk; =qfViw.kZ bZVhih gksus ls 8]20]285@& :i;s voS/k :i ls izkIr fd;sA bl izdkj dEiuh us =qfViw.kZ bZVhih }kjk rFkk vuqefr ls vf/kd ifj'kksf/kr fLizV dk mRiknu dj 8]38]35]449@& :i;s vijk/k dk vkxe izkIr fd;k rFkk dEiuh }kjk fy;s x;s _.k dk Hkqxrku djus vkSj dEiuh ds }kjk dPpk eky [kjhnus ds fy;s mlds Hkqxrku ds dke esa og jkf'k yh xbZA ifjoknh i{k ds }kjk mDr vijk/k ds vkxe dh lhek rd vfHk;qDr dEiuh dh lEifRr IykWV la[;k ,lih 156] vkS|ksfxd ,sfj;k] vthrx<+ ftyk lhdj dks dqdZ fd;k x;k ftldh iqf"V vkns'k fnukad 01&11&2018 vkSj vafre :i ls vkns'k fnukad 12&04&2019 ds }kjk U;k; fu.kZ;u izkf/kdkjh] ubZ fnYyh ds }kjk dh xbZA bl izdkj ifjokn ds lkFk izLrqr ekSf[kd ,oa izys[kh; lk{; dks ns[krs gq, ekeys esa izFken`"V;k ;g izekf.kr gS fd vfHk;qDr dEiuh eSllZ ,xzhck;ksVSd b.MLVªht fy0 ds }kjk vf/kfu;e 2002 dh /kkjk 3 esa ifjHkkf"kr rFkk mDr vf/kfu;e dh /kkjk 4 esa n.Muh; vijk/k dkfjr fd;k x;k gSAß So far as the staying of the impugned order by which cognizance has been taken against the petitioners for offence punishable under Section 3 read with Section 4 of the PML Act is concerned, without commenting upon detailed merits of the cognizance order, it would suffice to hold that the petitioners have not been able to demonstrate any prima facie case for staying the impugned order by which cognizance has been taken against them.(Downloaded on 24/09/2021 at 10:26:41 PM)
(16 of 16) [CRLR-731/2021] Looking to the various pronouncements of Hon'ble Supreme Court in which it has been held that severity of the offence for which a cognizance has been taken against the petitioners and other relevant factors, the trial court has discretion to issue non-bailable warrants. Keeping in mind that the cognizance has been taken for offences punishable under the PML Act against the petitioners, which is an economic offence and Hon'ble Apex Court has consistently held that such offences need to be treated on a different footing. Also keeping in mind the provisions of Section 45 of the PML Act, at this stage it cannot be held that the learned trial court has committed any legal error in passing the order of issuance of non-bailable warrants.
Therefore, keeping in mind various provisions of the PML Act and principles laid down by the Hon'ble Apex Court as discussed above, the petitioners have not been able to prima facie make out any case for staying the arrest warrants directed to be issued against them vide impugned order dated 12.07.2021.
Consequently, the stay applications are liable to be dismissed.
Accordingly, the stay applications stand dismissed.
A copy of this order be placed in the connected file.
(MANOJ KUMAR VYAS), J.
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