TaxTMI 
TaxTMI 
2024 (4) TMI 76
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....orcement Directorate vs NMP Sinha and Ors.' issuing Non-Bailable Warrants ('NBW') against the petitioner and proceedings thereafter. FACTUAL BACKGROUND 2. On 02.10.2020, the Central Bureau of Investigation ('CBI') had registered RC AC-1/2020/A0004, at CBI/AC-I, New Delhi under Sections 7-A/8/9/10/12 of Prevention of Corruption Act, 1988 ('PC Act'). This was registered pursuant to receipt of an information that Sh. N.M.P. Sinha i.e. Ex. SP, CBI, New Delhi, in conspiracy with Sh. Vinay Jalan, Sh. Parth Jalan, Sh. Rajiv Jhawar (present applicant) i.e. M.D. of M/s. Usha Martin Ltd., Sh. Raj Kumar Kapoor i.e. Authorized Signatory of M/s. Usha Martin Ltd., and other unknown persons, was trying to influence the investigation of the case of CBI registered vide RC17(E)/2016 dated 20.09.2016 under Section 13(2) read with Section 13(1)(d) of PC Act and Section 420/120B of Indian Penal Code, 1860 ('IPC'), by EO-II Branch, New Delhi against I.D. Paswan, the then Director (Mines), Govt. of Jharkhand, M/s. Usha Martin Ltd. and other unknown persons. The allegations were that Sh. N.M.P. Sinha was the Supervisory Officer of the aforesaid case before his retirement on 31.08.2020, and Sh. Raj Kuma....
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....P Sinha and rest Rs. 5 lakhs was retained by Vinay Kumar Jalan on request of N.M.P Sinha and the said amount totalling to Rs. 30 lakhs were seized by CBI. The aforesaid money totalling to Rs. 30 lakhs, which were acquired by N.M.P Sinha and Vinay Kumar Jalan, from Rajeev Jhawar, as a result of criminal activities related to schedule offences is proceeds of crime as defined under Section 2(1)(u) of PMLA. As alleged, the accused persons namely N.M.P Sinha, Rajeev Jhawar, Vinay Kumar Jalan, M/s. Usha Martin Ltd have committed the offence of money laundering as defined under Section 3 and they are liable to be prosecuted and punished under Section 4, and the bribe money Rs. 30 lakhs which is involved in the offence of money laundering is proceeds of crime in terms of Section 3 of PMLA and is liable to be confiscated in terms of section 8(5) of PMLA, 2002. 7. On 30.03.2023, prosecution complaint in the present case was filed against the aforesaid accused persons. Proceedings under Section 174 of the IPC were also initiated against the applicant. On 03.04.2023, cognizance of the prosecution complaint was taken by the learned Trial Court and process was issued against all four accused pe....
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....re, judicial discipline requires that till disposal of the bail application by this Court, no adverse order should have been passed against the petitioner. However, despite being informed of the pendency of present petitions before this Court, the learned Trial Court had erroneously issued fresh NBW against the petitioner on 22.02.2024. 13. Learned Senior Counsel further submits that the learned Trial Court has failed to appreciate that the petitioner has genuinely and bona fidely made various attempts to join the proceedings, but due to the various processes being issued against him by the Directorate of Enforcement and CBI, he is unable to do the same. Moreover, NBW has been issued by the learned Trial Court overlooking the fact that the issuance of NBW interferes with the personal liberty of the individual and therefore courts must exercise this discretion with abundant caution and only if absolutely necessary 14. Therefore, in these circumstances, it is prayed that impugned order dated 02.02.2024, and further proceedings, insofar as they related to issuance of NBW against the petitioner be quashed. On Behalf of the Respondent 15. On the other hand, learned Special Counsel ....
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....ismissed on this date. However, no coercive process was issued against him on this day. 18. Therefore, it is prayed that the present petition be dismissed, being devoid of any merits. 19. This Court has heard arguments addressed by learned Senior Counsel for the applicant/accused as well as learned Special Counsel for the Directorate of Enforcement, and has gone through the records of the case. ANALYSIS AND FINDINGS 20. In the present case, the question before this Court is whether the Non-Bailable Warrants issued against the petitioner vide order dated 02.02.2024 are liable to be quashed? 21. The sequence of events which unfolded before the learned Trial Court are that on 03.04.2023, cognizance was taken of the complaint filed by the Directorate of Enforcement, and summons were issued against all the accused persons. With respect to petitioner/accused Rajeev Jhawar, it was noted by the learned Trial Court that he had not appeared before the investigating agency during the course of investigation, and in the charge-sheet filed by the CBI, NBW had already been issued against him. It was also observed that the Court was not consciously issuing warrants against Rajeev Jhawar on ....
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....ar in person on the next date of hearing. The application is disposed of accordingly..." 23. Therefore, the application filed on behalf of the petitioner seeking exemption from personal appearance was allowed only for one day, with the direction to appear in person on the next date of hearing. Again on 19.07.2023, an application seeking exemption from personal appearance was preferred by the petitioner, however, the same was dismissed vide detailed order and it was clarified that though the Court could have issued Bailable Warrants against the petitioner/accused for the next date of hearing, it was not passing any adverse order against the accused. It was also made clear that if an application seeking exemption is again filed on the next date of hearing, the Court will straightaway issue Non-Bailable Warrants against the petitioner. The relevant portion of order dated 19.07.2023 is extracted hereunder for reference: "5. Order dated 31.05.2023 reflects that service of the summons were duly effected upon accused no. 3. On behalf of accused no. 3, appearance has been entered into and an application seeking exemption from personal appearance was moved which was allowed and the accu....
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....rrants against accused no. 3." 24. On 11.08.2023, the petitioner had appeared for the first time before the learned Trial Court, however, not physically, but through video-conferencing. After hearing arguments on behalf of the accused and the complainant, the learned Trial Court had taken a lenient view and allowed the petitioner to appear through videoconferencing on that day considering the fact that the matter was at the stage of scrutiny of documents and no prejudice would be caused to the complainant by physical absence of the accused. 25. On 19.09.2023, the petitioner had again appeared through video-conferencing before the learned Trial Court. A specific query had also been put to the learned counsel for the accused as to when the petitioner would appear physically before the Court as he was not on bail in this case. Though his appearance through videoconferencing was allowed on the said day, it was again clarified by the learned Trial Court that any exemption application preferred by the petitioner would be considered on merits. The matter was then renotified for 05.12.2023. These observations are as under: " ...Objection filed by ED to the application on behalf of acc....
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....n application cannot be allowed as he is not even on bail in this case. Hence, exemption application stands dismissed. A-3 is directed to physically appear on the next date of hearing failing which the court shall be inclined to issue NBWs against him." 27. It is also important to note at this juncture that prior to the next date of hearing, the anticipatory bail application of the petitioner was dismissed by the learned Trial Court vide order dated 19.01.2024. 28. Despite there being clear directions for the petitioner to appear physically before the learned Trial Court, another exemption application on his behalf was filed on 02.02.2024, which was dismissed by the learned Trial Court with the observations that there was repeated physical absence of the petitioner before the Court, despite giving assurance/ undertaking to do so, on previous various dates, and thus, there were no grounds to allow the exemption application as he was not even on bail in this case, and also considering the fact that no relief had been granted to the petitioner/accused by this Court in the connected CBI case. 29. The relevant portion of impugned order dated 02.02.2024, vide which NBW were issued ag....
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....s the contention that NBWs cannot be issued at the first instance after dismissal of exemption application is concerned, it is pertinent to mention that the exemption application of applicant/A-3 already stands dismissed on the previous date and no new fact is brought on record, to allow the present application. Moreover, the court had not issued NBWs on the previous date despite dismissal of his exemption application and granted him time to appear but he chose not to do so. Considering the previous conduct of A-3 and his repeated absence from physical presence before the court, despite giving assurance/ undertaking to do so, on previous various dates, the exemption application cannot be allowed as he is not even on bail in this case. Even the Hon'ble Delhi High Court has refused to grant any relief to the applicant/A-3 vide its order dated 24.01.24 in the connected CBI case considering his conduct. Hence, exemption application stands dismissed. A-3 appears to be intentionally not appearing before the court physically despite repeated directions, hence, I am of the opinion that his presence cannot be secured unless coercive measures are taken. Accordingly, issue NBWs against ....
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....d been issued that his failure to appear before the Court would lead to issuance of coercive process i.e. NBW. It is only thereafter that the learned Trial Court was left with no other option but to issue NBW against the petitioner. It is also relevant to note that the learned Trial Court had also considered in its previous orders, the conduct of the petitioner during the course of investigation i.e. his non-appearance before the investigating officer despite five summons being served upon him, the fact that complaint under Section 174 of IPC had been filed already against him by the prosecuting agency, and also the fact that NBWs had been issued against him in the connected CBI case and relief had been denied to the petitioner by this Court also in the CBI case as he had failed to return to India despite giving undertakings on numerous occasions. 35. As regards the reliance on judgment rendered by this Bench in case of Dr S. Jaitley (supra), the said decision is clearly distinguishable on the facts as well as law. In the case cited before this Court, this Court had allowed a 75 years old accused, who had already been granted bail in that case, to appear virtually before the learn....