Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl. REV.P. No. 290/2011 & Crl.M.A. 7545/2011 (stay)
th
% Reserved on: 27 July, 2011
nd
Decided on: 2 August, 2011
A. KRISHNA REDDY ..... Petitioner
Through: Mr. G. Tushar Rao, Mr. P.S. Reddy,
Mr. Atanu Mukherjee, Advs.
versus
C.B.I. ..... Respondents
Through: Mr. Dayan Krishnan, Mr. Gautam
Narayan, Advs.
Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA
1. Whether the Reporters of local papers may Not Necessary
be allowed to see the judgment?
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported Yes
in the Digest?
MUKTA GUPTA, J.
th
1. By this petition the Petitioner seek setting aside of the order dated 15
rd
June, 2011 as also the order dated 23 May, 2011 and quashing of initiation of
proceedings under Section 82 Cr.P.C in R.C. No. DAI-2010-A-0044 under
Crl.Rev.P. 290/2011 Page 1 of 9
Section 420/467/468/471 IPC read with 120-B IPC and 13 (1) (d) read with13
(2) of Prevention of Corruption Act (in short „PC Act‟).
2. The contention of the learned counsel for the Petitioner is that the
Petitioner was sub-contractor of M/s. Gem International which was itself a
sub-contractor of M/s. Swiss Timing Ltd. (in short „SLT‟). The Petitioner
th
entered into an agreement with M/s. Gem International on the 29 June, 2010
for laying of cables and related civil works for the TSR contract for the 17
stadiums. The Petitioner was never into picture when the Organizing
Committee entered into agreement with the STL. The Petitioner entered
belatedly because the work had to be completed in time as it was lagging
behind and due to torrential rains extra work force, materials etc. were
required. Despite the Petitioner neither being named in FIR nor having any
connection with either M/s. STL or M/s. Gem International the premises of
th
the Petitioner at Hyderabad were raided on 7 February, 2011 and documents
were sought under Section 91 Cr.P.C. which were immediately handed over to
the CBI. The Respondent‟s officers intensively interrogated the Petitioner at
th
Hyderabad and their queries were satisfactorily answered. On 10 February,
2011 CBI sent a fax message to the office of the Petitioner directing him to
furnish certain more documents and to bring some more witnesses to Delhi.
th
As per the oral instructions, on 11 February, 2011 the Petitioner appeared
Crl.Rev.P. 290/2011 Page 2 of 9
before the CBI officers and was subjected to a gruelling interrogation till late
th
hours. He was again asked to appear on the 12 February, 2011. When he
th
again appeared on the 12 February, 2011 at about 8.00 PM, he was asked to
sign a notice purportedly issued under Section 160 Cr.P.C. directing him to
th
appear on 13 February, 2011. The Petitioner had to leave for Hyderabad in
th
early hours of 13 February, 2011 as his wife was seriously ill. This
information was given by the Petitioner to the Investigating Officer on fax on
th
13 February, 2011.
3. Aggrieved by the action of the CBI, the Petitioner filed a writ petition
being W.P. (Crl.) No.241/2011 before this Court seeking quashing of the
th
abovementioned FIR which is pending adjudication before this Court. On 17
February, 2011 the Investigating Officer sent another letter by fax asking for
st
some more documents on 21 February, 2011. Petitioner was unable to
th
furnish the said documents. He informed the CBI about his inability. On 25
February, 2011 the Investigating Officer sent notices to Petitioner by fax to
nd
appear before the Investigating Officer on 2 March, 2011. However, as the
condition of the Petitioner‟s wife was still very bad, the Petitioner sent a letter
th
to the Investigating Officer to defer the enquiry dates. On 8 March, 2011
CBI sent another notice under Section 91 Cr.P.C. to produce some more
th
documents and to appear personally on the 11 March, 2011. Since there was
Crl.Rev.P. 290/2011 Page 3 of 9
great disturbances at that time due to violent agitation regarding separate
Telengana State and also due to ill-health of the wife of the Petitioner,
th
Petitioner sent a fax message dated 10 March, 2011 requesting the
th th
postponement of investigation to 25 March, 2011. On 29 March, 2011 the
learned Trial Court issued non-bailable and search warrants against the
st
Petitioner. On 31 March, 2011 a search was conducted at the residential as
well as office premises of the Petitioner, however, the Petitioner was not
available at that time as he was in Madhya Pradesh.
4. According to the Petitioner, the Petitioner had sufficiently joined the
investigation and submitted all documents. The learned Trial Court erred in
not considering the fact that the Petitioner was not named in FIR and for the
first time he was named as an accused in the charge-sheet filed by the CBI on
th
20 May, 2011 and, thus, there was no deliberate intention to hide or abscond
st
from the process of law. Even on 31 March, 2011 the CBI conducted search
at the residential as well as office premises of the Petitioner and it was clearly
disclosed that the Petitioner was at work site at Madhya Pradesh. Reliance is
placed on Jayant Vishnu Thakur Vs. State of Maharashtra (2009) 7 SCC 104
to contend that learned Trial Court failed to appreciate what “abscondence”
meant. It is, thus, prayed that the impugned order be set aside.
Crl.Rev.P. 290/2011 Page 4 of 9
5. Learned counsel for the CBI on the other hand contends that the
th th
Petitioner appeared before the CBI only on 11 February, 2011 and 12
February, 2011. Thereafter, despite notices admittedly received he did not
th
appear on 13 February, 2011 and left for Hyderabad without informing the
CBI. It is contended that the falsity of the excuses made by the Petitioner was
evident from the fact that on the one hand Petitioner claimed that he was
unable to appear before the Investigating agency on account of Wife‟s illness,
st
however admittedly on 31 March, 2011 when the CBI team searched the
residential office of the Petitioner, he was not available and was purportedly
in Madhya Pradesh on work. No address or whereabouts of Madhya Pradesh
were furnished. The anticipatory bail application of the Petitioner was
th
dismissed by the Hon‟ble High Court of Andhra Pradesh on the 28 March,
2011. The stand of the CBI was clearly spelt out and is recorded in the order.
th
Thereafter application for issuance of non-bailable warrants was filed on 29
March, 2011 which was allowed. The report with regard to non-bailable
rd
warrants being unexecuted was filed on 23 May, 2011 and a proclamation
th
was issued requiring the presence of the Petitioner on 14 July, 2011. The
th
Petitioner after 12 February, 2011 evaded the process of investigation and,
thus, there is no infirmity in the order. During investigation clear allegations
have emerged against the Petitioner and the learned Trial Court conscious of
Crl.Rev.P. 290/2011 Page 5 of 9
those allegations issued non-bailable warrants. Thus, there is no merit in the
petition and the same be dismissed.
6. I have heard learned counsel for the parties. With regard to non-
appearance pursuant to various notices, it is evident that the Petitioner though
was very much in a position to attend the investigation but deliberately tried to
evade the process of law on one ground or the other. The power of the Court
under Section 73 Cr.P.C. to issue non-bailable warrants against the persons
who are accused of non-bailable offence and are evading arrest is clearly
defined. Despite notices by the CBI the Petitioner refrained to appear before
Investigating Officer. The Petitioner is an accused in this case and because of
his absence the Court was justified in issuing warrants. The Learned Trial
Court examined the reasons given by the Petitioner for his non-appearance
th
before the Investigating Officer after the 12 February, 2011 and came to the
conclusion that the same were not justified and there was no sufficient
explanation for the Petitioner to leave the station. Though the Petitioner had
th
sent a fax message on 10 March, 2011 stating that he would appear before
th
the Investigating Officer on 25 March, 2011, however he did not appear and
when the CBI team searched the residential office of the Petitioner, he was not
available and was purportedly in Madhya Pradesh on work. No address or
whereabouts of place in Madhya Pradesh were furnished. The said fax
Crl.Rev.P. 290/2011 Page 6 of 9
message was false and misleading. Non-bailable warrants and search
th
warrants were issued on 29 March, 2011. The Learned Trial Court also took
into consideration that there was prima facie material on record against the
Petitioner showing his involvement in the conspiracy.
7. Reliance of the Petitioner on Jayant Vishnu Thakur (supra) is
misconceived. The Hon‟ble Supreme Court was dealing with a case where
the accused was being proceeded under Section 299 Cr.P.C. The Hon‟ble
Supreme Court laid down the conditions precedent for recording of the
evidence in absence of an absconding accused. In the said case, the accused
was absconding after he was arrested. In the present case, it is at the stage
where the Petitioner is avoiding investigation/arrest and even non-bailable
warrants are also not being executed against him, thus, the process of the
Court has been issued. The Court is within its right to declare him as a
proclaimed offender. Section 73 Cr.P.C. permits the Magistrate to issue a
warrant even against a person, who is accused of a non-bailable offence and is
avoiding arrest. After issuance of this process if Petitioner still does not
submit to the Court, the Court would be within its jurisdiction to proclaim him
as an absconder under Section 82 Cr.P.C.
8. In Siddharam Satlingappa Mhetre v. State of Maharashtra, 2011 (1)
SCC 694, their lordships have brought forth the plight of large number of
Crl.Rev.P. 290/2011 Page 7 of 9
under-trials who are languishing in jail for a long time even for allegedly
committing very minor offences and held that Section 438 Cr.P.C has not been
allowed in its full play. There is no denial to the fact that the liberty of an
individual is precious and so is the society‟s interest in maintaining peace, law
& order. It was thus held that arrest should be the last option and it should be
restricted to those exceptional cases where arresting the accused is imperative
in the facts and circumstances of the case. The Court must carefully examine
the entire available record and the allegations directly attributed to the accused
and that these allegations should be corroborated by other material and
circumstances on record. Applying the law laid down by their lordships, it
may be noted that the learned Trial Court was conscious of the fact that the
notices were given to the Petitioner to join the investigation however he did
not join. The learned Special Judge was further cautious that the investigation
involved unearthing of conspiracy in awarding the tender and the money trail
thereafter.
9. In Inder Mohan Goswami & Anr.v. State of Uttaranchal, 2007 (12)
SCC 1 , it has been held as under:-
“ 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
Crl.Rev.P. 290/2011 Page 8 of 9
of warrants but as a general rule, unless an accused
is charged with the commission of any 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.”
10. From the aforesaid facts it is clear that the investigating agency have
sufficient prima facie evidence against the Petitioner to take further action
against him. Therefore, I am of the opinion that the production of Petitioner
in the present case before the Court is essential and thus, I find no illegality in
the order passed by the learned Special Judge. The petition and application
are dismissed being devoid of merit.
(MUKTA GUPTA)
JUDGE
AUGUST 02, 2011
‘ga’
Crl.Rev.P. 290/2011 Page 9 of 9
+ Crl. REV.P. No. 290/2011 & Crl.M.A. 7545/2011 (stay)
th
% Reserved on: 27 July, 2011
nd
Decided on: 2 August, 2011
A. KRISHNA REDDY ..... Petitioner
Through: Mr. G. Tushar Rao, Mr. P.S. Reddy,
Mr. Atanu Mukherjee, Advs.
versus
C.B.I. ..... Respondents
Through: Mr. Dayan Krishnan, Mr. Gautam
Narayan, Advs.
Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA
1. Whether the Reporters of local papers may Not Necessary
be allowed to see the judgment?
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported Yes
in the Digest?
MUKTA GUPTA, J.
th
1. By this petition the Petitioner seek setting aside of the order dated 15
rd
June, 2011 as also the order dated 23 May, 2011 and quashing of initiation of
proceedings under Section 82 Cr.P.C in R.C. No. DAI-2010-A-0044 under
Crl.Rev.P. 290/2011 Page 1 of 9
Section 420/467/468/471 IPC read with 120-B IPC and 13 (1) (d) read with13
(2) of Prevention of Corruption Act (in short „PC Act‟).
2. The contention of the learned counsel for the Petitioner is that the
Petitioner was sub-contractor of M/s. Gem International which was itself a
sub-contractor of M/s. Swiss Timing Ltd. (in short „SLT‟). The Petitioner
th
entered into an agreement with M/s. Gem International on the 29 June, 2010
for laying of cables and related civil works for the TSR contract for the 17
stadiums. The Petitioner was never into picture when the Organizing
Committee entered into agreement with the STL. The Petitioner entered
belatedly because the work had to be completed in time as it was lagging
behind and due to torrential rains extra work force, materials etc. were
required. Despite the Petitioner neither being named in FIR nor having any
connection with either M/s. STL or M/s. Gem International the premises of
th
the Petitioner at Hyderabad were raided on 7 February, 2011 and documents
were sought under Section 91 Cr.P.C. which were immediately handed over to
the CBI. The Respondent‟s officers intensively interrogated the Petitioner at
th
Hyderabad and their queries were satisfactorily answered. On 10 February,
2011 CBI sent a fax message to the office of the Petitioner directing him to
furnish certain more documents and to bring some more witnesses to Delhi.
th
As per the oral instructions, on 11 February, 2011 the Petitioner appeared
Crl.Rev.P. 290/2011 Page 2 of 9
before the CBI officers and was subjected to a gruelling interrogation till late
th
hours. He was again asked to appear on the 12 February, 2011. When he
th
again appeared on the 12 February, 2011 at about 8.00 PM, he was asked to
sign a notice purportedly issued under Section 160 Cr.P.C. directing him to
th
appear on 13 February, 2011. The Petitioner had to leave for Hyderabad in
th
early hours of 13 February, 2011 as his wife was seriously ill. This
information was given by the Petitioner to the Investigating Officer on fax on
th
13 February, 2011.
3. Aggrieved by the action of the CBI, the Petitioner filed a writ petition
being W.P. (Crl.) No.241/2011 before this Court seeking quashing of the
th
abovementioned FIR which is pending adjudication before this Court. On 17
February, 2011 the Investigating Officer sent another letter by fax asking for
st
some more documents on 21 February, 2011. Petitioner was unable to
th
furnish the said documents. He informed the CBI about his inability. On 25
February, 2011 the Investigating Officer sent notices to Petitioner by fax to
nd
appear before the Investigating Officer on 2 March, 2011. However, as the
condition of the Petitioner‟s wife was still very bad, the Petitioner sent a letter
th
to the Investigating Officer to defer the enquiry dates. On 8 March, 2011
CBI sent another notice under Section 91 Cr.P.C. to produce some more
th
documents and to appear personally on the 11 March, 2011. Since there was
Crl.Rev.P. 290/2011 Page 3 of 9
great disturbances at that time due to violent agitation regarding separate
Telengana State and also due to ill-health of the wife of the Petitioner,
th
Petitioner sent a fax message dated 10 March, 2011 requesting the
th th
postponement of investigation to 25 March, 2011. On 29 March, 2011 the
learned Trial Court issued non-bailable and search warrants against the
st
Petitioner. On 31 March, 2011 a search was conducted at the residential as
well as office premises of the Petitioner, however, the Petitioner was not
available at that time as he was in Madhya Pradesh.
4. According to the Petitioner, the Petitioner had sufficiently joined the
investigation and submitted all documents. The learned Trial Court erred in
not considering the fact that the Petitioner was not named in FIR and for the
first time he was named as an accused in the charge-sheet filed by the CBI on
th
20 May, 2011 and, thus, there was no deliberate intention to hide or abscond
st
from the process of law. Even on 31 March, 2011 the CBI conducted search
at the residential as well as office premises of the Petitioner and it was clearly
disclosed that the Petitioner was at work site at Madhya Pradesh. Reliance is
placed on Jayant Vishnu Thakur Vs. State of Maharashtra (2009) 7 SCC 104
to contend that learned Trial Court failed to appreciate what “abscondence”
meant. It is, thus, prayed that the impugned order be set aside.
Crl.Rev.P. 290/2011 Page 4 of 9
5. Learned counsel for the CBI on the other hand contends that the
th th
Petitioner appeared before the CBI only on 11 February, 2011 and 12
February, 2011. Thereafter, despite notices admittedly received he did not
th
appear on 13 February, 2011 and left for Hyderabad without informing the
CBI. It is contended that the falsity of the excuses made by the Petitioner was
evident from the fact that on the one hand Petitioner claimed that he was
unable to appear before the Investigating agency on account of Wife‟s illness,
st
however admittedly on 31 March, 2011 when the CBI team searched the
residential office of the Petitioner, he was not available and was purportedly
in Madhya Pradesh on work. No address or whereabouts of Madhya Pradesh
were furnished. The anticipatory bail application of the Petitioner was
th
dismissed by the Hon‟ble High Court of Andhra Pradesh on the 28 March,
2011. The stand of the CBI was clearly spelt out and is recorded in the order.
th
Thereafter application for issuance of non-bailable warrants was filed on 29
March, 2011 which was allowed. The report with regard to non-bailable
rd
warrants being unexecuted was filed on 23 May, 2011 and a proclamation
th
was issued requiring the presence of the Petitioner on 14 July, 2011. The
th
Petitioner after 12 February, 2011 evaded the process of investigation and,
thus, there is no infirmity in the order. During investigation clear allegations
have emerged against the Petitioner and the learned Trial Court conscious of
Crl.Rev.P. 290/2011 Page 5 of 9
those allegations issued non-bailable warrants. Thus, there is no merit in the
petition and the same be dismissed.
6. I have heard learned counsel for the parties. With regard to non-
appearance pursuant to various notices, it is evident that the Petitioner though
was very much in a position to attend the investigation but deliberately tried to
evade the process of law on one ground or the other. The power of the Court
under Section 73 Cr.P.C. to issue non-bailable warrants against the persons
who are accused of non-bailable offence and are evading arrest is clearly
defined. Despite notices by the CBI the Petitioner refrained to appear before
Investigating Officer. The Petitioner is an accused in this case and because of
his absence the Court was justified in issuing warrants. The Learned Trial
Court examined the reasons given by the Petitioner for his non-appearance
th
before the Investigating Officer after the 12 February, 2011 and came to the
conclusion that the same were not justified and there was no sufficient
explanation for the Petitioner to leave the station. Though the Petitioner had
th
sent a fax message on 10 March, 2011 stating that he would appear before
th
the Investigating Officer on 25 March, 2011, however he did not appear and
when the CBI team searched the residential office of the Petitioner, he was not
available and was purportedly in Madhya Pradesh on work. No address or
whereabouts of place in Madhya Pradesh were furnished. The said fax
Crl.Rev.P. 290/2011 Page 6 of 9
message was false and misleading. Non-bailable warrants and search
th
warrants were issued on 29 March, 2011. The Learned Trial Court also took
into consideration that there was prima facie material on record against the
Petitioner showing his involvement in the conspiracy.
7. Reliance of the Petitioner on Jayant Vishnu Thakur (supra) is
misconceived. The Hon‟ble Supreme Court was dealing with a case where
the accused was being proceeded under Section 299 Cr.P.C. The Hon‟ble
Supreme Court laid down the conditions precedent for recording of the
evidence in absence of an absconding accused. In the said case, the accused
was absconding after he was arrested. In the present case, it is at the stage
where the Petitioner is avoiding investigation/arrest and even non-bailable
warrants are also not being executed against him, thus, the process of the
Court has been issued. The Court is within its right to declare him as a
proclaimed offender. Section 73 Cr.P.C. permits the Magistrate to issue a
warrant even against a person, who is accused of a non-bailable offence and is
avoiding arrest. After issuance of this process if Petitioner still does not
submit to the Court, the Court would be within its jurisdiction to proclaim him
as an absconder under Section 82 Cr.P.C.
8. In Siddharam Satlingappa Mhetre v. State of Maharashtra, 2011 (1)
SCC 694, their lordships have brought forth the plight of large number of
Crl.Rev.P. 290/2011 Page 7 of 9
under-trials who are languishing in jail for a long time even for allegedly
committing very minor offences and held that Section 438 Cr.P.C has not been
allowed in its full play. There is no denial to the fact that the liberty of an
individual is precious and so is the society‟s interest in maintaining peace, law
& order. It was thus held that arrest should be the last option and it should be
restricted to those exceptional cases where arresting the accused is imperative
in the facts and circumstances of the case. The Court must carefully examine
the entire available record and the allegations directly attributed to the accused
and that these allegations should be corroborated by other material and
circumstances on record. Applying the law laid down by their lordships, it
may be noted that the learned Trial Court was conscious of the fact that the
notices were given to the Petitioner to join the investigation however he did
not join. The learned Special Judge was further cautious that the investigation
involved unearthing of conspiracy in awarding the tender and the money trail
thereafter.
9. In Inder Mohan Goswami & Anr.v. State of Uttaranchal, 2007 (12)
SCC 1 , it has been held as under:-
“ 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
Crl.Rev.P. 290/2011 Page 8 of 9
of warrants but as a general rule, unless an accused
is charged with the commission of any 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.”
10. From the aforesaid facts it is clear that the investigating agency have
sufficient prima facie evidence against the Petitioner to take further action
against him. Therefore, I am of the opinion that the production of Petitioner
in the present case before the Court is essential and thus, I find no illegality in
the order passed by the learned Special Judge. The petition and application
are dismissed being devoid of merit.
(MUKTA GUPTA)
JUDGE
AUGUST 02, 2011
‘ga’
Crl.Rev.P. 290/2011 Page 9 of 9