Gujarat High Court
Vithalbhai Jethabhai Zariwala vs State Of Gujarat & on 10 December, 2014
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/SCR.A/4922/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 4922 of 2014
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VITHALBHAI JETHABHAI ZARIWALA....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR DINESH B PATEL, ADVOCATE for the Applicant(s) No. 1
MR HB CHAMPAVAT, ADVOCATE for the Applicant(s) No. 1
MR DEVANG VYAS, ADVOCATE for the Respondent(s) No. 2
PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 10/12/2014
ORAL ORDER
1. Draft amendment allowed.
2. By this application, the applicant-original accused No.7 prays for the following reliefs:
"(A) To allow this application.
(B) To issue a writ of certiorari and to quash and set aside the order for issuance of warrant dated 21.12.2013 passed below Exh.1 in PMLA Case no.01/2013 pending before the Hon'ble Designated Special Court, Ahmedabad (Rural) established under the Prevention of Money Laundering Act, 2002 and be pleased to convert or modify the order for issuance of warrant into summons and further be pleased to direct the release of the petitioner from judicial custody on appropriate terms and conditions.Page 1 of 10
R/SCR.A/4922/2014 ORDER (C ) Pending admission, hearing and final disposal of this application to stay the order dated 21.12.2013 passed below Exh.1 in PMLA Case no.01/2013 pending before the Hon'ble Designated Special Court, Ahmedabad (Rural) and to release the petitioner from judicial custody on appropriate terms and conditions.
(D) To pass any other or further orders as may be deemed fit and proper."
3. By way of draft amendment, the applicant has prayed for the reliefs in the following terms:
"15(E) To declare the order of issuance of warrant against the petitioner passed below Exh 1 in PMLA case no.01/2013 as illegal and against provision of Article 21 of the Constitution of India and against the provisions of Code of Criminal Procedure, 1973 and to release the petitioner from the custody forthwith.
15(F) To declare the arrest of the petitioner as illegal and against the provision of Article 21 of the Constitution of India and against the provisions of Code of Criminal Procedure, 1973."
4. It appears from the materials on record that the Designated Judge under the PMLA Act, vide order dated 21 st December, 2013, took cognizance upon the complaint and ordered issue of warrant against all the accused named therein. The applicant herein figure as accused No.7 in the complaint. Pursuant to the order passed by the Designated Judge, the applicant herein was arrested and remanded to judicial custody. The applicant, thereafter, filed a bail application before the learned Designated Judge which was ordered to be rejected. Being dissatisfied, the applicant, thereafter, filed an application for bail before this court. A Coordinate Bench of this court also rejected the bail Page 2 of 10 R/SCR.A/4922/2014 ORDER application. It appears that the His Lordship (Coram:A.S. Dave, J.) rejected the bail application on merits.
5. In this petition before me, the principal contention raised on behalf of the applicant is that at the time of taking cognizance upon the complaint filed by the Deputy Director, the Designated Judge ought not to have passed the order of issue of warrant. Such submission is based on the decision of the Supreme Court in the case of Inder Mohan Goswami vs. State of Uttaranchal, reported in 2007 (12) SCC 1. I had the occasion to consider an identical issue raised by identically situated accused persons against whom complaint has been lodged under the PMLA Act. I took the view that there was no justification for the Designated Judge to issue a non-bailable warrant while taking cognizance upon the complaint, more particularly, when there was nothing on record to suggest that the accused would not appear before the trial court or would abscond and thereby delay the trial.
6. I may quote the order passed by me dated 19 th November, 2014.
"By this application under Article 227 of the Constitution of India, the applicants - original accused persons seek to challenge the order dated 29th October 2014 passed by the learned Designated Judge below Exh.1 in P.M.L.A. Case No.4 of 2014.
It appears that a first supplementary complaint to the P.M.L.A. Case No.3 of 2014 dated 18th July 2014 was lodged by the Deputy Director for the offence under Section 4 of the Prevention of Money Laundering Act, 2002 in the Court of the Principal District and Sessions Judge, Ahmedabad (Rural) (the designated Special Court under the Prevention of Money Laundering Act, 2002) at Page 3 of 10 R/SCR.A/4922/2014 ORDER Ahmedabad. The Designated Judge under the PML Act, 2002 passed the following order below Exh.1:
"ORDER BELOW EXH-1 Heard Spl.PP Mr.Sudhir Gupta. It prima facie reveals that there is substance in the complaint as files by the complainant. Hence the following order :
ORDER
1. Cognizance as submitted is taken, hence this complaint be registered and numbered.
2. Issue warrant against accused No.2, 4, 5, 7, 8, 9, 10 and summons against accused No.3 and 6. R/O dated 10- 11- 2014.
3. Yadi to Sabarmati central jail with regard to this case for the appearance of the accused No.1.
Date :-29/10/2014 Designated Judge,
Under PML Act.
Ahmedabad (Rural) @ Mirzapur,
Gujarat."
The petitioners herein - original accused call in question the legality and validity of the order of issue of warrant passed by the Designated Judge under the PMLA Act, 2002. The principal contention raised on behalf of the petitioners herein is that there was no justification for the Designated Judge to issue non-bailable warrant while taking cognizance upon the complaint and ordering issue of process. The contention is that the learned Designated Judge ought not to have issued warrant in the first instance, more particularly, when there was nothing on record to suggest that the accused would not appear before the trial Court or would abscond and thereby delay the trial. This Court passed the following order dated 7th November 2014 :
"1. Issue Notice to the respondents returnable on 19 th November, 2014. Mr. Soni, the learned APP waives service of notice for and on behalf of the respondent no.2-State of Gujarat.
2. The principal contention raised on behalf of the Page 4 of 10 R/SCR.A/4922/2014 ORDER petitioners is with regard to the legality and validity of the order of issue of warrant passed by the Designated Judge under P.M.L. Act 2002, Ahmedabad (Rural), Mirzapur, Ahmedabad dated 29th October, 2012.
3. It appears that a complaint has been lodged against the applicants herein for the offence of money laundering punishable under Section 4 of the Act 2002, read with Section 120B of the Indian Penal Code. The complaint has been filed by the Deputy Director, Directorate of Enforcement, Ministry of Finance, Department of Revenue, Government of India in exercise of his powers under Section 45 of the Act 2002. It also appears that it is the First Supplementary complaint dated 29th October, 2014 filed in the Complaint dated 18th July, 2014 in the P.M.L.A Case No.3 of 2014 by the Deputy Director,Enforcement Directorate.
4. In the said complaint the complainant prayed before the Court to take cognizance of the offence of money laundering in terms of Section 3 punishable under Section 4 of the P.M.L. Act 2002 and issue process against the accused persons in accordance with law. The complainant also prayed to direct confiscation of the properties involved in the money laundering in terms of Section 8(5) of P.M.L. Act 2002. The complainant also prayed for issuing non-bailable warrant in lieu of prosecution against the accused.
5. It appears that the learned Sessions Judge passed an order below complaint No.4/14 on 29th October, 2014 and directed to register the complaint as P.M.L.A Case against all the accused. The Learned Sessions Judge also ordered to issue warrant against the petitioners herein (original accused nos. 2,4,5,7,8,9 and 10) and the warrant was made returnable on 10th November, 2014.
6. The submission on behalf of the petitioners is that the learned Designated Judge ought not to have issued warrant in the first instance, more particularly when there is nothing on record to suggest that the accused persons would not honour the summons or that the accused persons have already absconded. The learned advocate appearing on behalf of the petitioners has drawn my attention to the averments made in the complaint. There are no such averments made by the complainant. My attention is drawn to the provisions of Section 87 of the Page 5 of 10 R/SCR.A/4922/2014 ORDER Code of Criminal Procedure which provides for issue of warrant in lieu or in addition to summons. However the condition precedent is assigning reasons in writing. My attention has been drawn to a decision of the Supreme Court in the case of Inder Mohan Goswami and another Vs. State of Uttaranchal and others, reported in 2008 (1) G.L.H. 603, wherein, the Supreme Court has observed that 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.
7.The Supreme Court has further observed that the power to issue warrant is discretionary and 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 or is likely to evade the process of law, issuance of non- bailable warrants should be avoided.
8. On a plain reading of the provisions of law as well as the decision of the Supreme Court, it appears prima facie that if the offence is heinous, the Court may be justified in issuing non-bailable warrants simultaneously with the order of process, but it appears on a plain reading of Section 87 of the Code of Criminal Procedure that at the same time the Court concerned is also obliged to satisfy itself by recording reasons that the accused persons are likely to evade the process of law or have already absconded. Issuance of non bailable warrant should be avoided except in case of heinous crime or it is feared that accused is likely to tamper or destroy the evidences or is likely to evade the process of law.
9. I do not find any such findings recorded by the designated judge in her order dated 29th October, 2014 while issuing warrant.Page 6 of 10
R/SCR.A/4922/2014 ORDER
10. Mr.S.M. Vatsa, the learned advocate appearing on behalf of the petitioners makes a statement upon instructions that the petitioners herein will abide by the order of issue of process to remain present before the Court on 10th November, 2014.
11. Having heard the learned counsel appearing for the petitioners and having gone through the materials on record, I am of the view that the petitioners have been able to make out a strong prima facie case to have an interim order to the limited extent that, the order passed by the Designated Judge for issue of warrant shall remain stayed from its operation, till the next date of hearing.
12. Let this matter appear on 17th November, 2014. The respondent no.1 be served directly. Direct service is permitted today."
I have heard Mr.Vatsa, the learned advocate appearing on behalf of the applicants and Mr.Devang Vyas, the learned Assistant Solicitor General of India appearing on behalf of the department. Mr.Vyas very fairly submitted that the applicants herein were called for the purpose of interrogation by the authorities prior to the filing of the complaint. Their statements were recorded, and at that relevant point of time, they had cooperated with the inquiry. He further submits that at the relevant point of time, the authority concerned had not thought fit to arrest them. Mr.Vyas further submits that in such circumstances, the learned Designated Judge probably could not have issued non-bailable warrant. Mr.Vyas very fairly submitted that there cannot be any debate as regards the position of law discussed by this Court in its order dated 7th November 2014. Mr.Vatsa, the learned advocate appearing on behalf of the applicants submitted that as recorded by this Court in para10 of the order dated 7th November 2014, all the applicants remained present before the Designated Court and their presence was also marked. He submits that at that point of time, they also offered surety, however, the same was objected by the learned advocate appearing on behalf of the department since this petition was pending before this Court. Mr.Vyas clarifies that with the disposal of this petition there should not be any objection on the part of the department if the Designated Court accepts the surety which has been offered by the applicants. In the Page 7 of 10 R/SCR.A/4922/2014 ORDER aforesaid view of the matter, nothing more is required to be adjudicated. The position of law has been wellexplained by the Supreme Court in the case of Inder Mohan Goswami and another v. State of Uttaranchal and others, reported in 2008(1) GLH 603, wherein the Supreme Court has explained when non-bailable warrant should be issued. The Supreme Court has observed thus :
"When non-bailable warrants should be issued.
Non-bailable warrant should be issued to bring a person to court when summons of 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 courts 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 nonbailable warrants.Page 8 of 10
R/SCR.A/4922/2014 ORDER 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 straight-jacket 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 or is likely to evade the process of law, issuance of non- bailable warrants should be avoided.
The Court should try to maintain proper balance between individual liberty and the interest of the public and the State while issuing non-bailable warrant."
In the result, this application is allowed. A part of the order passed by the learned Designated Judge under the PML Act, Ahmedabad (Rural), so far as the issue of warrant is concerned, is hereby ordered to be quashed.
I clarify that it will be absolutely for the learned Designated Judge to decide what type of surety is to be accepted including the requisite amount. I do not express any opinion in that regard. The applicants shall regularly appear before the trial Court on the date fixed for hearing and mark their presence.
Direct service is permitted."
7. Mr. Goswami, the learned advocate appearing on behalf of the applicant submits that since the applicant was arrested pursuant to a non-bailable warrant and if the order of issue of non-bailable warrant itself was not tenable in law, then in such circumstances, the detention of the applicant would be unlawful and contrary to Article 21 of the Constitution of India.
8. I inquired with Mr. Goswami, the learned advocate, whether such contention was raised before the learned Single Judge at the time of arguing the bail application. Mr. Goswami fairly submitted that such contention was not raised. However, Page 9 of 10 R/SCR.A/4922/2014 ORDER the application was rejected on its own merits on other grounds.
9. In this application, the applicant wants me to adjudicate this issue and give a declaration that his arrest pursuant to the non-bailable warrant was illegal. His prayer is that once this court declares the arrest to be illegal, he is to be ordered to be released on bail.
10. I am afraid, I am unable to accept such submission for the simple reason that the bail application of the applicant has been adjudicated on merits and His Lordship Anant S. Dave, J., vide order dated 21st February, 2014, has rejected after assigning reasons in detail.
11. I cannot sit in appeal over an order of a Coordinate Bench. In such circumstances, I am of the view that this matter may be heard by the learned Judge who decided the bail application of the applicant. Let this matter be placed before the Hon'ble the Acting Chief Justice for appropriate orders.
(J.B.PARDIWALA, J.) Vahid Page 10 of 10