This article has been authored by Ritik Jain, a Second year students Nirma Law University.

(1) Material Facts of The Case-

In this case, complainant Mr. Anuj Tyagi, Representative of M/s Saya Cementation Ltd. stated that Mr. Amit Mavi, Director of M/s Baya Weaver Ltd. and M/s Alisha Infratech Pvt. Ltd. had informed them that he was developing a project in Noida, UP, in the name of ‘Oh My God’ but he couldn’t complete the project which had been started in the year 2013 and not more than 5% of the work had been done at the site till that time and thus Mr. Amit Mavi proposed to transfer the shareholding of these two companies (Baya Weaver Ltd. And Alisha Infratech Ltd.) to the complainant company (Saya Cementation Ltd.).

Later, Complainant took a loan of Rs. 350 crores from India Infoline Finance Ltd. (IIFL) and the Share Purchase Agreement was executed between the accused and the complainant for a consideration of Rs.3.13 crores and a Demand Draft (DD) of Rs.11.58 crores was made towards the settlement of various litigations against Amit Mavi.

However, even after the complete agreement and receipt of consideration, accused persons evaded the delivery of documents and refused to hand over the same to the complainant. An, amount of Rs.9.33 crores out of Rs.11.58 crores was also deposited in the Nainital Bank Ltd. for the purpose of payments to customers. The same was misappropriated by the accused. Therefore, charges under Sections 420(cheating), 406(Criminal Breach of Trust), and 120B (criminal conspiracy) of the Indian Penal Code (IPC), 1860 were registered against the accused and, a non- bailable warrant was issued, thereafter, proceedings were initiated under Section 82 of the Code of Criminal Procedure (Cr.P.C.),1973 against the accused.

(2) Issues-

(i)Whether a non-bailable warrant can be issued against the accused under Section 73 of the Cr.P.C. solely for the production of accused before the police in aid of investigation?

(ii) Whether accused of Section 406,420 and, 120B of Indian Penal Code can be declared as a Proclaimed Offender under Section 82 of the Cr.P.C.?

(3) Arguments of The Parties

(1) By Applicant:

(A) The Applicant that the FIR, is maliciously instituted to extort him, though the matter relates to a civil commercial dispute and arbitration proceedings are also pending.

(B) It cannot be claimed by the State that the petitioner was evading the process of law, merely because he is alleged to have evaded queries put by the Investigating Agency or alleged to not cooperating in investigation by not answering the question. Therefore, Magistrate cannot issue the non-bailable warrants against him.

By Respondent-

(A) The Respondent stated that the complainant paid the total amount to the accused and a further payment of Rs. 5.31 crores was made by him for various outstanding payments but the accused person refused to deliver the documents even after the receipt of the entire consideration. Therefore, charges were framed against the accused persons under Section 406,420, and 120 of the IPC.

(B) The accused did not disclose anything about the conspiracy hatched by them in siphoning of funds of Rs.9 crores which were paid for making clients payments and he had not cooperated in the investigation appropriately, though he had joined the same. Therefore, a non- bailable warrant was issued against them, thereafter, proceedings were initiated under Section 82 of the Cr.P.C.

(4) Findings of The Court-

Regarding the first issue, the court stated that non-bailable warrants cannot be issued against the accused under Section 73 of the Cr.P.C solely for the production of accused before the police in aid of investigation.

(i)When warrants can be issued: