TMI Blog2023 (9) TMI 661X X X X Extracts X X X X X X X X Extracts X X X X ..... cused persons and non-taking of the steps on their behalf, the Court below ought to have issued a bailable warrant of arrest since there is nothing on record to suggest that the accused persons have been deliberately avoiding to appear before the Court. The impugned order is thus rendered unsustainable in the eye of law warranting interference - Application allowed. - JUSTICE SASHIKANTA MISHRA For the Petitioners : Mr. S.C. Mohapatra, Sr. Advocate with M/s. Pratik Dash, S. Anuvav, S.C. Nayak, S. Pattanaik S. Mohapatra. For the Opp. Parties : Mr. Gopal Agarwal, Advocate for E.D. JUDGMENT SASHIKANTA MISHRA, J. All the four applications filed under Section 482 of Cr.P.C. are directed against the same order and were hence heard together and are being disposed of by this common judgment. 2. All these four petitioners have been arrayed as accused persons in CMC(PMLA) No. 84 of 2020 in the Court of learned Sessions Judge, Khurdha at Bhubaneswar which is a complaint instituted under Section 44 of the Prevention of Money Laundering Act, 2002 (in short PML Act ) for the alleged commission of the offence punishable under Section 4 of the said Act. Sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not take necessary steps on the date fixed nor informed the next date of the posting of the case to the petitioners, for which they remained completely ignorant of the proceedings. Since there no further communication from such counsel, the petitioners having come to know about issuance of the NBW as per the impugned order have engaged a new counsel, for which the case record was advanced to 01.08.2023. In any event, steps had been taken earlier on most of the dates on behalf of the petitioners and therefore, the Court below should not have taken the drastic step of issuing NBW. Mr. Mohapatra has relied upon some case laws to buttress his argument which shall be discussed at the appropriate place. 5. Mr. G. Agarwal, learned counsel appearing for E.D. on the other hand would argue that the order sheet of the case would reveal that the Court below had granted enough liberty to the petitioners to appear but they failed to do so. Moreover, they did not comply with the summons issued by the Court below but appeared through counsel, who went on seeking adjournments for their appearance. Since the allegations against the petitioners of money laundering are grave in nature and involve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt observed that the unfortunate sequel of such unmindful orders has been that the appellant was taken into custody and had to remain in jail for a few days, but without any justification whatsoever. She suffered because facts of the case were not considered in proper perspective before passing the orders. The Court also observed that some degree of care is supposed to be taken before issuing warrants. 49. In State of U.P. v. Poosu [(1976) 3 SCC 1 : 1976 SCC (Cri) 368] at SCC p. 5, para 13 the Court observed: 13. Whether in the circumstances of the case, the attendance of the accused-respondent can be best secured by issuing a bailable warrant or non-bailable warrant, is a matter which rests entirely in the discretion of the Court. Although, the discretion is exercised judicially, it is not possible to computerise and reduce into immutable formulae the diverse considerations on the basis of which this discretion is exercised. Broadly speaking, the court would take into account the various factors such as, the nature and seriousness of the offence, the character of the evidence, circumstances peculiar to the accused, possibility of his absconding, larger interest o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been filed with an oblique motive. 55. In complaint cases, at the first instance, the court should direct serving of the summons along with the copy of the complaint. If the accused seem to be avoiding the summons, the court, in the second instance should issue bailable warrant. In the third instance, when the court is fully satisfied that the accused is avoiding the court's proceeding intentionally, the process of issuance of the non-bailable warrant should be resorted to. Personal liberty is paramount, therefore, we caution courts at the first and second instance to refrain from issuing non-bailable warrants. 56. 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 of warrants but as a general rule, unless an accused is charged with the commission of an 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. 8. The observations made ..... X X X X Extracts X X X X X X X X Extracts X X X X
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