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.
(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.
(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:
The Court relied on the case of ‘Inder Mohan Goswami and Ors. Vs. State of Uttaranchal and Ors’, and observed that:
(A)The issuance of a warrant whether bailable or non-bailable is entirely in the discretion of the Court, however, such discretion has to be exercised by the courts with utmost care in the the issuance of non-bailable warrants, particularly, because it involves interference with the personal liberty of a person. Therefore, non-bailable warrants can be issued,
· If the police authorities cannot find the person to serve him with a summon; or
· If the person will not voluntarily appear in the court; or
· If the person could harm someone, if not placed into custody.
(B)A summon or a bailable warrant should be preferred to ensure the appearance of the accused in the court. However, warrants whether bailable and non-bailable should be issued after the proper scrutiny and complete application of the facts. Also, the court must carefully examine whether the FIR or Criminal Complaint has not been filed with a malicious motive to exhort the person.
(C) In complaint cases, firstly, the court should directly serve the summons to the accused along with the copy of the complaint. Secondly, if the accused does not appear in the court after issue of a summons, then the court should issue a bailable warrant. Thirdly, if the court after examining the situation, is fully satisfied that the accused is avoiding the proceeding intentionally, then, issuance of the non-bailable warrant should be resorted to.
(ii) Production of accused before the police in aid of investigation-
The court relied on the case of ‘State through C.B.I. Vs. Dawood Ibrahim Kaskar and Ors.’and observed that:
(A)According to the section 73 of Cr.P.C., a power is given to the class of Magistrates to issue a warrant for arrest of three classes of person which are: a proclaimed offender, escaped convict and, a person accused of a non-bailable offence and is evading arrest.
If, during investigation the Investigating Officer intends to arrest the accused and he evades the arrest, then, the only option open to the Investigating Officer is to ask the Magistrate to invoke his powers under Section 73 and thereafter those relating to proclamation of offender and attachment. However, the Magistrate has to exercise his discretion, in a judicial manner after analysing the facts to arrest such a person, who is evading arrest.
But in the given case, the accused(petitioner) has not been arrested by the police despite having the power to arrest him. In this petition, there is nothing on record which shows that the Investigating Officer was ever satisfied with the requirement of the petitioner to be arrested or not. Hence, it can be deduced from the order passed by the Magistrate, that there are not appropriate reasons to justify the discretion exercised by him.
(B)The court also observed that even if there is some specific legal obstacle during the investigation, which makes the arrest of accused impossible, and the police under any provision of the Cr.P.C. intends to seek warrant from the Magistrate for arrest, then the police has to specify the obstacle, which the warrant issued by the Magistrate would remove. If, there is not any specific obstacle, and only on the assertion that the accused was evading arrest, then, the issuance of a warrant of arrest by the Magistrate would be only for the aid of the investigating officer or police, which could not be done by the Magistrate.
In the given case also, the application does not specify any obstacles, which were preventing the Investigating Officer from arresting the accused/petitioner without the aid of the warrant except to say that the petitioner is evading arrest.
Therefore, under the Section 73 of the Cr.P.C., a warrant of arrest cannot be issued by the Courts solely for the production of the accused before the police in aid of investigation.
Regarding the second issue, the court held that a person accused of offences under Section 420, 406, and 120B under the IPC cannot be declared as a 'proclaimed offender' under Section 82(4) of the Cr.P.C., 1973.
(A) “Section 82(1) of the Cr.P.C., empowers a court to publish a written proclamation against a person, requiring him to appear at a specified place and at a specified time not less than thirty days from the date of publishing such proclamation. This proclamation is issued if the court has reason to believe that a person against whom a warrant has been issued by it, has absconded or is concealing himself so that such warrant cannot be executed.”
(B)The court relied the case of Sanjay Bhandari vs. State (2018), and held that “the declaration under Section 82(4) can be made only against the accused with respect to the offences specified which are: Section302, 304, 364, 367, 382, 392, 393, 394, 395, 396, 397,3 98, 399, 400, 402, 436, 449, 459 or 460 of the IPC. If a person is the accused of the offences mentioned in Section 82(4), only then, the court can issue the pronouncement of proclaimed offender.”
Hence, section 420,406, and 120B of IPC do no not come under the ambit of the Section 82(4) of Cr.P.C. and the accused cannot be declared as a proclaimed offender.
(5) Judgement of the Case-
In the given case, the present petition is allowed and the non-bailable warrants ordered against the petitioner by the Court of the learned CMM, PHC as well as declining the prayer of the applicant seeking cancellation of non-bailable warrants of the learned CMM, PHC under Sections 406,420, and 120B of the Indian Penal Code, 1860 are set aside.
(A) Non-bailable warrant should not be issued against the accused under Section 73 of Cr.P.C. solely for the production of accused before the police in aid of investigation. Also, merely on the application of police officer or Investigating officer, the Magistrate should not invoke Section 73 for issuing warrants in routine manner and without the clear understanding of the application of facts. This is because, sometimes, the police uses the power of the Magistrate to issue a warrant of arrest, only as a tool to avoid its responsibility to carry out the investigation to the logical end, and only for the purpose of getting such an accused declared as proclaimed offender. As narrated in the facts of case, there is nothing on record which shows that Investigating Officer was ever satisfied with the requirement of the petitioner to be arrested or not. Therefore, the Magistrate should exercise proper discretion at the time of issuance of warrants of arrest.
(ii)In the Sanjay Bhandari Case, the Delhi High Court had rejected the argument of the prosecution that “irrespective of the provisions of Section 82(4), every person in respect of whom a proclamation has been published is deemed to be a proclaimed offender.” In my opinion, rejection of argument of prosecution by the Delhi High Court is logical and appropriate because if such an argument is accepted, then the consequence would be that a person qua whom a proclamation has been published and is not accused of any of the offences mentioned in Section 82(4), would be declared as a proclaimed offender, without the safeguard of an inquiry stipulated in Section 82(4). This can certainly not be the intention of the legislature.
Therefore, an 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.