Legal Document View

Unlock Advanced Research with PRISMAI

Integrated with over 4 crore judgments and laws — designed for legal practitioners, researchers, students and institutions

- Know your Kanoon - Doc Gen Hub - Counter Argument - Case Predict AI - Talk with IK Doc - ...
Upgrade to Premium
[Cites 29, Cited by 0]

Jharkhand High Court

Rajesh Yadav @ Dahu Yadav vs Union Of India Through Its Directorate ... on 13 April, 2023

Author: Gautam Kumar Choudhary

Bench: Gautam Kumar Choudhary

                                          1

IN THE HIGH COURT OF JHARKHAND AT RANCHI
                         Cr. M. P. No. 4200 of 2022
                               -----

  Rajesh Yadav @ Dahu Yadav                 ...       ....       Petitioner
                               Versus

1. Union of India through its Directorate of Enforcement. Ranchi

2. Assistant Director-cum-I.O. of Enforcement PMLA Act ... .... Opp. Parties

-----

CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

-----

  For the Petitioner     : M/s Kalyan Roy & Siddharth Roy, Advocates
  For the E.D.           : Mr. Anil Kumar, Addl.S.G.I.
                           Ms. Chandana Kumari, AC to Addl.S.G.I.
                               -----
  Oral Order
  05 / Dated : 13.04.2023

       I.A. No.160 of 2023

Heard learned counsel for the petitioner in this interlocutory application which has been filed for amendment in the prayer portion of the quashing application to include order dated 14.12.2022 by which the process under Section 82 of the Cr.P.C. has been issued.

It is submitted that initially non-bailable warrant of arrest issued vide order dated 29.10.2022 was challenged but during pendency of the instant petition, the process under Section 82 of the Cr.P.C. has also been issued vide order dated 14.12.2022.

I.A. No.160 of 2023 is allowed and the prayer for including the order issuing proclamation is allowed.

The petitioner is permitted to incorporate the order dated 14.12.2022 in the petition, during the course of the day.

Cr. M. P. No. 4200 of 2022

1. The instant criminal misc. petition has been filed for quashing the order dated 29.10.2022 passed by the Special Judge, P.M.L.A Court, Ranchi by which non-bailable warrant of arrest has been issued against the petitioner in connection with ECIR Case No. 04 of 2022 under Sections 3 and 4 of Prevention of Money Laundering Act arising out of Barharwa P.S. Case No. 85 of 2020 under Sections 147, 149, 341, 342, 323, 379, 120B, 504, 506 of IPC.

2. It is submitted by learned counsel for the petitioner that the issuance of non-bailable warrant and subsequent issuance of process under Sections 82 and 83 of Cr.P.C. was impermissible under Section 73 of Cr.P.C. The maximum 2 sentence under Section 4 of PMLA is punishable with seven years which is covered by Section 41A Cr.P.C. for which notice, should have been issued at the first instance but no such notice has been issued and straightway after summon, warrant of arrest and processes under Sections 82 and 83 of Cr.P.C. have been issued.

3. It is submitted that the petitioner throughout cooperated with the investigation and had appeared before the officers of Enforcement Directorate on 14.07.2022, 16.07.2022 and 17.07.2022 and all relevant documents as required have already been filed on 14.10.2022.

4. It is also submitted that from the order-sheet dated 04.11.2022 it will be apparent that the petitioner had filed power in ECIR Case No. 4/2022-A.

5. It is submitted by Addl.S.G.I. that ECIR Case No. 4 of 2022 was lodged on 16.09.2022 in which the petitioner was not named and during course of investigation, the petitioner was given notice under Section 50 of PMLA whereby he appeared on 15.07.2022 and 17.07.2022 and his statement was recorded which is part of the prosecution complaint dated 16.09.2022 against the other accused persons.

6. During investigation, the petitioner started evading the investigation and summons dated 28.07.2022, 10.08.2022 and 01.09.2022 were issued on his address for personal appearance to produce the records, evidence and explanation, but the petitioner intentionally evaded appearance before opposite party no. 2 and showed his reluctance to join the ongoing investigation.

7. On 19.07.2022 an e-mail was sent by the petitioner about his mother's illness and on 27.07.2022 the petitioner cited his own medical condition and sought time to appear on the next date.

8. Under this circumstance, a prayer for issuance of warrant of arrest was made in the present case against the petitioner which was issued vide order dated 29.10.2022. The warrant of arrest was issued to the Superintendent of Police, Sahibganj but despite issuance of process the petitioner did not appear. Consequently, process under Section 82 Cr.P.C. was issued on 14.12.2022.

9. Lastly, on 31.03.2023 the process of attachment has been issued under Section 83 Cr.P.C.

10. It is submitted by Addl.S.G.I. that there is specific provision for arrest under Section 19 of PMLA and it is not controlled by Section 41A Cr.P.C. Further, Section 65 of PMLA provides that those provisions of Cr.P.C. which are not inconsistent with the provisions of PMLA, will have application in PMLA 3 cases. In view of the specific provision of arrest, warrant was issued and since there is no provision of proclamation and attachment under the PMLA, therefore, recourse has been taken to Section 82 and 83 Cr.P.C. The constitutional validity of Section 19 has been upheld by Hon'ble the Supreme Court in Vijay Madanlal Choudhary and others Vs. Union of India reported in (2022) SCC On Line 929.

11. It is argued that subsequent order which has been issued under Section 83 Cr.P.C. by learned Special Judge, PMLA, Ranchi has not been challenged by the petitioner and as such, the present petition has become infructuous. Filing of power before the Special Court was for obtaining the certified copies of relevant documents and cannot be deemed that petitioner had submitted to the process of law.

12. The present case being ECIR Case No.04/2022 pending before the court of special judge PMLA, arises out of Sahibganj Mufassil P.S. Case No.29/2002 for offences under sections 307 and 120 B of IPC and Section 27 of the Arms Act, which is part of the complaint made under Section 45 of the PMLA. Sections 307, 120B of IPC and the provisions of the Arms Act are scheduled offences.

13. Subject matter of challenge is Non-Bailable Warrant of Arrest issued against the petitioner by order dated 29.10.2022, on a petition filed on behalf of Enforcement directorate under sections 70 Cr.P.C. read with section 65 of PMLA, on inter-alia the following grounds:

I. During investigation under the PMLA, it came to light that (i) Pankaj Mishra (ii) Bachhu Yadav and (iii) Prem Prakash played a pivotal role in illegal mining and related criminal activity, and further committed offence of money laundering under section 3 punishable under section 4 of the PMLA.
II. It also came to light that this petitioner along with one Sunil Yadav and others, controlled the inland waterways and had obtained the tender of ferry services, which was started by state of Bihar on 14.03.20 22 from Manihari to Sahibganj using their power, clout and influence. The auction was awarded for an amount of Rs. 8.52 crore. An amount of Rs 4,28,81,865/-was initially deposited in cash with Nazarat Branch of Collectorate Kathiar by Samiti, which was controlled by Pankaj Mishra and this petitioner. The ferry services were used for illegal transportation of trucks loaded with stone chips. This petitioner is said to be hand in glove with the principal accused in illegal 4 mining and transportation of stone chips.
III. Under section 50 of PMLA all the persons so summoned is bound to attend in person or through authorised agents. IV. There was possibility that accused persons may temper with evidence and influence the witnesses. Due to non-cooperation of the petitioner, investigation was being hampered. V. During investigation, statement of accused persons were recorded under sections 50 PMLA. On15.07.2022 and 17.07.2022 the statement of this petitioner was recorded, which is part of the prosecution complaint dated 16.09.20 22.

Summons were subsequently issued to him but he avoided appearance.

14. Power of a special judge to issue non-bailable warrant against an accused evading appearance before the investigating agency for offence under PMLA is the central issue in the present case.

15. The argument of ASGI that such a power could be traced under Section 19 of PMLA, does not appear to be convincing because, 'power to arrest' and the issuance of warrant of arrest against accused, cannot be equated and are not the same thing. While power to arrest is vested with an investigating agency as per the provisions stated in the Code or under the special law as the case may be. However, power of issuance of warrant of arrest is vested with the Court, which can be issued as per the provisions laid down in the code or any special law. What is saved under Section 19 of PMLA is the power of arrest by the investigating agency as per the provision laid down therein. The power of issuance of warrant of arrest is under Section 73 of the Cr.P.C. and not under Section 19 of PMLA.

16. Here the principal question is the legality of the impugned order by which non-bailable warrant and subsequent processes have been issued against the petitioner.

17. In State v. Dawood Ibrahim Kaskar, (2000) 10 SCC 438 the power of court to issue warrant during the course of investigation has been recognised and is indisputable. In exercise of power Section 73 a warrant of arrest can be issued inter alia on the ground that such a person was accused of an offence and was evading arrest. There is nothing to draw an inference that Special Court PMLA cannot exercise of power under Section 73 of the Cr.P.C.

5

In P. Chidambaram v. Directorate of Enforcement, (2019) 9 SCC 24 while hearing the anticipatory bail Hon'ble Supreme Court exposited the principles in case of pre arrest bail in the following word:

69. Ordinarily, arrest is a part of procedure of the investigation to secure not only the presence of the accused but several other purposes.

Power under Section 438 CrPC is an extraordinary power and the same has to be exercised sparingly. The privilege of the pre-arrest bail should be granted only in exceptional cases. The judicial discretion conferred upon the court has to be properly exercised after application of mind as to the nature and gravity of the accusation; possibility of the applicant fleeing justice and other factors to decide whether it is a fit case for grant of anticipatory bail. Grant of anticipatory bail to some extent interferes in the sphere of investigation of an offence and hence, the court must be circumspect while exercising such power for grant of anticipatory bail. Anticipatory bail is not to be granted as a matter of rule and it has to be granted only when the court is convinced that exceptional circumstances exist to resort to that extraordinary remedy. Inder Mohan Goswami v. State of Uttaranchal, (2007) 12 SCC 1:

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.

18. Offence of money laundering is punishable with rigourous imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine, under section 4 of PMLA.

19. It will not be out of place to state that under Section 41 arrest without warrant is permissible by police under Section 41(1) against whom reasonable complaint has been received credible information received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to 7 years, injury on the grounds stated therein. The grounds include for proper investigation of the offence, or to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case.

6

Further Section 73 Cr.P.C. specifically provides for power to issue warrant of arrest against any person accused of a non-bailable offence and evading arrest.

20. Notice of appearance before police officer under Section 41 A arises in cases where the arrest of a person is not required under the provisions of sub - section(1) of Section 41.

21. Here in the present case, petitioner is accused of being involved in the scheduled offences of controlling the illegal mining and trading of stone chips. The entire exercise of illegal mining and transportation, as per the prosecution case was orchestrated by accused persons with political connections. The petitioner is accused of scheduled offences like Section 307 IPC and Section 27 of the Arms Act. From the illegal mining and trade of stone chips, proceeds of crime in crores were generated. It has also been stated in the petition submitted by the ED before the learned court below for the issuance of warrant, that more than four crore was deposited in cash by the younger brother of this petitioner to obtain the tender of ferry services.

22. After making initial appearances, the petitioner was evading appearance before the investigating agency despite repeated summons being issued against him. It was against this background that non-bailable warrant of arrest and other processes have been issued against the petitioner. In any case a person accused of a serious offence cannot be permitted to dictate and control the pace of investigation by seeking adjournments and then not joining the investigation.

23. From perusal of the order dated 14.12.2022 by which the process under Section 82 of Cr.P.C. has been issued against the petitioner evading his arrest, it is manifest that the process under Section 82 of the Cr.P.C. has been issued on receipt of the execution report of non-bailable warrant which was returned from the office of Superintendent of Police, Sahibganj as unexecuted.

I do not find any illegality in the impugned orders dated 29.10.2022 and 14.12.2022.

Criminal Miscellaneous Petition stands dismissed.

(Gautam Kumar Choudhary, J.) AKT