Subhash Chand, J
1. The instant criminal miscellaneous petition has been filed on behalf of Amit Kumar Sarawgi @ Amit Sarawgi @ Amit Sarawagi and Tulsi Goswami with the prayer to quash the order dated 28.05.2024 passed by the learned S.D.J.M., Giridih in connection with Giridih (M) P.S. Case No. 393 of 2023 whereby and whereunder the non-bailable warrant of arrest has been issued against them. Further the prayer is made to quash the order dated 14.06.2024 whereby the learned court of S.D.J.M., Giridih has been pleased to issue process under section 82 of Cr.PC.
2. Learned counsel for the petitioners has submitted that Muffasil P.S. Case No. 393 of 2023 was registered on 12.12.2023 under sections 147, 149, 353, 389, 120(B), 420, 417, 467, 468 and 471 of the Indian Penal Code against both the petitioners with these allegations that the accused Amit Kumar Sarawagi and his father Ashok Sarawagi had taken loan of Rs.3.59 crores from State Bank of India in the year 2011 for their company Sri Bir Ispat Ltd. and in lieu of the loan they mortgaged their 54.33 acres of land situated at Manjhladih. Due to default in payment of loan, account of the said company came in category of non-performing asset and consequently the matter was referred to National Company Law Tribunal by which the informant was appointed liquidator on 21.12.2021. In that capacity liquidator who is informant of this case began the process of auctioning the land under proper information to the accused who are petitioners herein. During auction process, Carbon Resources Pvt. Ltd. Mahtodih, Giridih purchased the 54.33 acres of land of the accused Amit Sarawagi's Company Sri Bir Ispat Pvt. Ltd. for Rs.13.58 crore. Accordingly, on 19.05.2023 liquidator and others went to the land for giving possession of said land to the purchaser. The accused Amit Sarawgi under a criminal conspiracy to cheat the bank and others also to defeat the process of law, produced an antedated forged lease deed for 30 years showing that the same to be executed between his deceased father and petitioner Tulsi Goswami on 15.01.2011. It is alleged that the said lease deed is forged document as it has been prepared on the stamp paper purchased on 15.12.2011 and two witness of it have disclosed to the police that they were working with the accused and their signature over the same were taken in the year 2022. They have denied about contents of that document and it is stated that on 19.05.2023 the complainant went to the land for giving possession of the land to the purchaser of land in auction and then accused persons alongwith three unknown persons came there and started abusing them. They threatened the informant to give the said land to them otherwise they will be implicated in false case of rape, dacoity etc. Further alleged that they have snatched away few documents related to auction of the land from the informant and tore those papers into pieces. The informant then tried to stop them that he was doing government job, accused persons extended threatening to murder him. It is stated that as and when he tried to convince the accused in capacity of government servant not to trouble the Carbon Resources Company at first accused kept taking time by making some excuses and now they have started threatening the informant to implicate him in false cases. The photocopy of the certified copy of the FIR is annexure no.1 of this petition.
2.1 It is also further submitted that notice under section 41A was also issued to the petitioners on 17.12.2023 and they gave reply of the notice to the investigating officer which is annexure nos.2, 3 & 3/1 of this petition. The learned counsel for the petitioners has also submitted that pertaining to this FIR, the several litigation was going on between the parties and the non-bailable warrant of arrest and process under section 82 of Cr.PC was issued by the trial court which was arbitrary. The investigating officer was well aware that the petitioners were the law abiding citizens and were not the absconder yet he got the non-bailable warrant and process under section 82 of Cr.PC from the court concerned which are arbitrary, unreasonable and unfair, accordingly, sought to quash the non-bailable warrant and process under section 82 of Cr.PC against them.
2.2 The learned counsel for the petitioners also submitted that non-bailable warrant and the process under section 82 of Cr.PC were against the provisions of the law and same were arbitrary and same deserved to be quashed and in support of his contention relied following case law: “Syed Mohiuddin Ahmad v. State of U.P. & Ors.” Criminal Appeal No.8338 of 2022 (Allahabad High Court), “Inder Mohan Goswami & another v. State of Uttaranchal & Ors.” (2007) 12 SCC 1, “Manish Yadav v. State of U.P.” Cri. Misc. Anticipatory Bail Application u/s 438 Cr.PC No. 4645 of 2022 (Allahabad High Court) and “Srikant Upadhyay & Ors. v. State of Bihar & Ors.” Criminal Appeal No. 1552 of 2024 (Supreme Court).
3. Per contra the learned SC-VII on behalf of the State and the learned counsel for the informant opposed the contentions made by the learned counsel for the petitioners.
4. From the perusal of record it is found that the FIR of Case Crime No. 393 of 2023 which was registered on 12.12.2023 against both the petitioner under sections 147, 149, 353, 389, 120(B), 420, 417, 467, 468 and 471 of the Indian Penal Code, the investigation of the same is pending.
5. From the annexure no.7 it is also found that the anticipatory bail application of the petitioners has also been rejected in ABP No. 222 of 2024 on 22.05.2024.
6. On 28.05.2024 the investigating officer of this case crime has moved the application for issuance of non-bailable warrant against the accused Tulsi Goswami and Amit Kumar Sarawgi @ Amit Sarawgi @ Amit Sarawagi in Giridih (M) P.S. Case No. 393 of 2023 under sections 147, 149, 353, 389, 120(B), 420, 417, 467, 468 and 471 of the Indian Penal Code. This petition was forwarded by the learned APP and investigating officer has also attached the relevant pages of the case diary in support of the contents of the petition.
7. The learned court of S.D.J.M., Giridih after having perused the entire record alongwith the relevant pages of the case diary has recorded that several attempt was made by the investigating officer to arrest the accused in the said case, dates of the same are also mentioned but the accused were evading their arrest. It is also mentioned that the named accused were also not found on place of residence. The learned court of S.D.J.M., Giridih having been satisfied from the papers of the case diary which were annexed with the application for issuance of non-bailable warrant issued non-bailable warrant against the accused Tulsi Goswami and Amit Kumar Sarawgi on 28.05.2024.
8. Herein it would be relevant to give the provisions of sections 41 and 41(A) of the Code of Criminal Procedure 1973 which are reproduced hereinbelow:
“41. When police may arrest without warrant.- (1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person –
[(a) who commits, in the presence of a police office, a cognizable offence;
(b) against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognisable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely :-
(i) the police has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence;
(ii) the police officer is satisfied that such arrest is necessary -
(a) to prevent such person from committing any further offence; or
(b) for proper investigation of the offence; or
(c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or
(d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer;or
(e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured; and the police officer shall record while making such arrest, his reason in writing;
[Provided that a police officer shall, in all the cases where the arrest of a person is not required under the provision of this sub-section, record the reasons in writing for not making the arrest;]
(ba) against whom credible information has been received that he has committed a cognizable offence punishable with imprisonment far a term which may extend to more than seven years whether with or without fine or with death sentence and the police officer has reason to believe on the basis of that information that such person has committed the said offence;]
(c) who has been proclaimed as an offender either under this Code or by order of the State Government; or
(d) in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing; or
(e) who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; or
(f) who is reasonably suspected of being a deserter from any of the Armed Forces of the Union; or –
(g) who has been concerned in, or against whom reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been concerned in, any act committed at any place out of India which if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India; or
(h) who, being a released convict, commits a breach of any rule, made under sub-section (5) of section 356; or
(i) for whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition.
[(2) Subject to the provisions of Section 42, no person concerned in a non-cognizable offence or against whom a complaint has been made or credible information has been received or reasonable suspicion exists of his having so concerned, shall be arrested accept under a warrant or order of a Magistrate.
8.1 [41A. Notice of appearance before police officer -
(1) [The police officer shall], in all cases where the arrest of a person is not required under the provisions of sub-section (1) of Section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice.
(2) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice.
(3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested.
[(4) Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent Court in this behalf, arrest him for the offence mentioned in the notice.]”
8.2 As per admission made in the petition the notice under section 41(A) of Cr.PC was also issued to both the accused persons and reply thereof was also given by both the accused to the investigating officer which are made annexure no.2 of this petition. But despite issuance of notice under section 41(A) of Cr.PC the accused persons evaded their arrest. The investigating officer has mentioned the specific date 23.05.2024, 24.05.2024 and 25.05.2024 on which attempt was made to arrest both the accused persons by the investigating officer. The same fact were also mentioned in para no.73, 80 and 87 of the case diary and the investigating officer also went to the residence of the accused person but the accused persons evaded their arrest. Therefore, he moved the petition for issuance of non-bailable warrant against both the accused persons.
8.3 Though the offence alleged against the petitioners under section 467 is punishable with life imprisonment. The allegations made in the FIR are of cognizable offence. In view of section 41(1)(a) the investigating officer of the case was authorized to arrest the accused persons; yet in the case in hand since he had issued the notice to both the accused persons under section 41-A and the notice were not complied by both the accused persons. Therefore, he moved the application before the court of SDJM, Giridih for issuance of non-bailable warrant against the accused persons.
9. Herein Section 73 of the Criminal Procedure Code is become relevant which is reproduced hereinbelow:
“73. Warrant may be directed to any person.- (1) The Chief Judicial Magistrate or a Magistrate of the first class may direct a warrant to any person within his local jurisdiction for the arrest of any escaped convict, proclaimed offender or of any person who is accused of a non-bailable offence and is evading arrest.
(2) Such person shall acknowledge in writing the receipt of the warrant, and shall execute it if the person for whose arrest it was issued, is in, or enters on, any land or other property under his charge.
(3) When the person against whom such warrant is issued is arrested, he shall be made over with the warrant to the nearest police officer, who shall cause him to be taken before a Magistrate having jurisdiction in the case, unless security is taken under section 71.”
9.1 From the very perusal of section 73(1) it is found that the court of SDJM, Giridih was empowered to issue non-bailable warrant against both the accused on the ground that offences were non-bailable and both the accused were evading their arrest. Therefore, non-bailable warrant which was issued by the learned court of SDJM, Giridih against both the accused was in accordance with the provisions of section 73 of the Criminal Procedure Code.
10. On 14.06.2024 as is evident from the impugned order dated 14.06.2024 a requisition duly forwarded by learned APP alongwith copy of the case diary and execution report of non-bailable warrant has been filed by the investigating officer praying therein to issue the process under section 82 of Cr.PC against both the accused Tulsi Goswami and Amit Kumar Sarawgi in the aforesaid case Giridih (M) P.S. Case No. 393 of 2023.
10.1 From the very perusal of this order dated 14.06.2024 it is found that investigating officer has submitted in para 102, 109, 116, 123 and 130 of the case diary that the process of non-bailable warrant has been issued against both the accused persons but they are evading their arrest. Ultimately, he prayed for issuance of process under section 82 of Cr.PC against them.
10.2 The learned court of SDJM, Giridih perused the execution report of non-bailable warrant and the case record as is evident from the impugned order. He satisfied himself that in view of para 102, 109, 116, 123 and 130 of the case diary which transpired that the investigating officer has carried out a raid at the residence of both the accused persons on 30.05.2024, 02.06.2024, 05.06.2024, 08.06.2024 and 10.06.2024 to nab them but all the occasions they evaded their arrest. Therefore, non-bailable warrant could not be executed against them and returned not executed. The learned lower court has also mentioned that the anticipatory bail petition of the accused has already been rejected on 22.05.2024 which transpired that the accused has also well acquaintance of the present case. Therefore, the Magistrate concerned has shown his satisfaction and issued the process under section 82 of Cr.PC against both the accused persons on 14.06.2024 also mentioned the mode of proclamation in the impugned order itself.
10.3 Herein section 82 of Cr.PC also becomes relevant which is reproduced hereinbelow:
“82. Proclamation for person absconding.- (1) If any Court has reason to believe (whether after taking evidence or not) that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, such Court may publish a written proclamation 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.
(2) The proclamation shall be published as follows:--
(i) (a) it shall be publicly read in some conspicuous place of the town or village in which such person ordinarily resides;
(b) it shall be affixed to some conspicuous part of the house or homestead in which such person ordinarily resides or to some conspicuous place of such town or village;
(c) a copy thereof shall be affixed to some conspicuous part of the Court-house;
(ii) the Court may also, if it thinks fit, direct a copy of the proclamation to be published in a daily newspaper circulating in the place in which such person ordinarily resides.
(3) A statement in writing by the Court issuing the proclamation to the effect that the proclamation was duly published on a specified day, in the manner specified in clause (i) of sub-section (2), shall be conclusive evidence that the requirements of this section have been complied with, and that the proclamation was published on such day.
[(4) Where a proclamation published under sub-section (1) is in respect of a person accused of an offence punishable under section 302, 304, 364, 367, 382, 392, 393, 394, 395, 396, 397, 398, 399, 400, 402, 436, 449, 459 or 460 of the Indian Penal Code (45 of 1860), and such person fails to appear at the specified place and time required by the proclamation, the Court may, after making such inquiry as it thinks fit, pronounce him a proclaimed offender and make a declaration to that effect.
(5) The provisions of sub-sections (2) and (3) shall apply to a declaration made by the Court under sub-section (4) as they apply to the proclamation published under sub-section (1).]”
11. The issuance of process under section 82 of Cr.PC is also found in accordance with the provisions of section 82 of Cr.PC and there is no illegality in issuance of process under section 82 of Cr.PC also.
12. In view of the above the impugned order dated 28.05.2024 whereby the non-bailable warrant was issued against both the petitioners/accused and the impugned order dated 14.06.2024 whereby process under section 82 of Cr.PC were issued both bear no illegality and same are not found arbitrary. The case law upon which the learned counsel for the petitioners has relied upon, the same are not applicable in the facts and circumstances of case in hand as in this case it was investigating officer who got the order of issuance of non-bailable warrant and issuance of process under section 82 of Cr.PC during investigation to nab the accused in Giridih (M) P.S. Case No. 393 of 2023; While the case law upon which the learned counsel for the petitioners has relied upon, all those case law are applicable only when the charge-sheet has been filed and after taking cognizance on the charge-sheet, firstly the summon is to be issued if the summons are being evaded, secondly the bailable warrant should be issued and despite execution of bailable warrant the accused does not appear the non-bailable warrant are to be issued and thereafter the process under section 82 of Cr.PC can be issued.
13. In view of the discussion made hereinabove, I am of the considered view that the impugned order passed by the learned court below does not bear any illegality or infirmity and same needs no interference. Accordingly, this criminal petition deserves to be dismissed.
14. This criminal petition is, hereby, dismissed.
15. Let the copy of the judgment be communicated to the concerned court.
