9911796707
TMI Blog2023 (3) TMI 301X X X X Extracts X X X X X X X X Extracts X X X X ..... arty renewed such oral assurance before any judicial forum. In the instant case, the petitioner was sent to District Hospital, Asansol on 2nd March, 2023 when he complained of his illness. It is submitted by the learned Deputy Solicitor General on instruction that the petitioner has been discharged from the hospital. Therefore, it is presumed that there is no acute reason to hold that the petitioner is unfit by reason of his sickness from being removed to Delhi. Since Section 482 can only be invoked to give effect to any order under this Code, or to prevent abuse of the process of the Code or otherwise to secure the ends of justice. In the instant case, it is found from the pleadings and the relief sought for by the petitioner that the petitioner has been trying to obstruct the process of the Court. This is not the only instance. The petitioner repeatedly filed series of applications to resist the Enforcement Directorate from executing production warrant issued against him - Since there is no order of stay of execution of production warrant dated 19/20th December, 2022 by any judicial forum, and the impugned order is absolutely interlocutory in nature, there are no merit in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... venue is seized of the issue with regard to the jurisdiction. 5. It is further stated by Mr. Sibal that the respondent in the present case is seeking production warrant against the accused from the Special Judge, Rouse Avenue. However, the Special Judge is yet to determine the merits of the application, including the issue of his jurisdiction. 6. In this view of the matter, it is stated that the petitioner will argue the application u/s 267 Cr.P.C. before the Special Court on the next date of hearing. 7. In the meantime, issue notice. Mr. Sharma, learned SPP accepts notice, seeks and is granted 4 weeks to file a reply/rejoinder before the next date of hearing. 8. Issuance of notice in this petition will not come in the way of the Special Court to decide the application and all issues, including jurisdiction. 9. List on 23.01.2023. It is submitted by Mr. Kishor Datta, learned Senior Counsel on behalf of the petitioner that on the basis of oral undertaking given by the learned Special Public Prosecutor on behalf of the opposite party, the Enforcement Directorate did not find any necessity to pray for issuance of production warrant against the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt at Delhi is pending and has been fixed now on 17th March, 2023. The learned Special Judge, Rouse Avenue Court has also not decided the issue relating to jurisdiction as per the direction made by the High Court at Delhi on 15th December, 2022 as yet. Without deciding the said issue, the petitioner cannot be directed to be produced before the Trial Court at Delhi. Next limb of the argument advanced by Mr. Datta on behalf of the petitioner that the petitioner is seriously ill. He was shifted to hospital yesterday and at this stage on health ground he should not be taken to Delhi. It is submitted by Mr. Datta that Section 269 of the Code of Criminal Procedure empowers the Officer-in-Charge of the prison to abstain from carrying out the Court s order under Section 267 of the Cr.P.C., where the person in respect of whom an order is made under Section 267 of the Cr.P.C. is by reason of sickness or infirmity unfit to be removed from the prison. Mr. Billwadal Bhattacharyya, learned Deputy Solicitor General, on the other hand, submits that the instant application filed by the petitioner is liable to be dismissed summarily on the ground of suppression of materials fact and conscious ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erday at Delhi High Court. According to Mr. Bhattacharyya, the above act by the petitioner is a clear instance of suppression of fact and Forum Shopping. The attempt made by the petitioner should be taken very harshly and exemplary cost should be imposed against the petitioner. In support of his contention, Mr. Bhattacharyya refers to a decision of the Hon ble Supreme Court in the case of Bombay Metropolitan Region Development Authority, Bombay Vs. Gokak Patel Volkart Ltd. Ors. reported in (1995) 1 SCC 642. Referring to Paragraph 12 and 13 of the aforesaid report it is submitted by Mr. Bhattacharyya that the petitioner had already approached the Delhi High Court under Section 482 of the Code of Criminal Procedure for staying operation of the order dated 19th December, 2022 passed by the Trial Court and having been failed, he moves the instant application for the same relief in roundabout way which is not permissible under the law. On the issue of Forum Shopping , learned Deputy Solicitor General relies on Kamini Jaiswal Vs. Union of India Anr., (2018) 1 SCC 156. It is observed by the Hon ble Supreme Court in the above report forum shopping takes several hues and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ering case registered against him in New Delhi. Immediately thereafter, on 09.12.2022 a criminal case, namely, Dubrajpur Police Station Case No.266/2022 dated 19.12.2022 under sections 323, 325, 307, 506 IPC was lodged implicating the petitioner in a purported incident of assault which is said to have occurred one and half years ago. Though no medical papers in support of such assault were placed, the State Police Administration in post haste obtained police custody of the petitioner in the said case. Mr. Singh contends such exercise was a mala fide one and undertakes to abort the execution of the production warrant. We are informed that the legality of the production warrant is pending consideration before the Delhi High Court. To avoid pre-judging the issue we choose not to make any comment with regard to its legality save and except observing the arrest and police custody of the petitioner in the belated FIR registered against him appears to be an overzealous and unjustified exercise for reasons not far to seek. In reply, it is submitted by Mr. Datta that the instant application cannot be treated to be an instance of Forum Shopping because in the application filed before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... January, 2023. There is absolutely no record that after 9th January, the opposite party renewed such oral assurance before any judicial forum. It is on record that yesterday an application under Section 482 of the Cr.P.C. was moved before the Delhi High Court with a prayer to bring oral assurance made by the ED for not taking any step for execution of production warrant against the petitioner. In the said application, no interim order against execution of production warrant was passed by the Delhi High Court and the application is fixed for hearing on 17th March, 2023. Production warrant was directed to be issued by the Trial Court vide order dated 19th December, 2022. On 1st March, 2023, the Superintendent, Asansol Correctional Home received an e-mail from the Additional Director, ED(HIU), New Delhi for execution of production warrant dated 20th December, 2022 under Section 267 of the Cr.P.C. The Superintendent, Asansol Correctional Home submitted a prayer before the learned Special Judge, CBI Court at Asansol seeking permission to execute the production warrant. The said prayer was allowed by the learned Judge which is the subject matter of challenge in the instant revision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esist the Enforcement Directorate from executing production warrant issued against him. Not only the petitioner in his private capacity but also the State Police Administration was made to engage by registering a criminal case on 9th December, 2022, namely, Dubrajpur Police Station Case No.266 of 2022 dated 19th December, 2022 under Sections 323/325/307/506 IPC implicating the petitioner in a purported incident of assault which is said to have occurred about one and half years ago. It is important to note that above-mentioned police case was registered on the very date when the Trial Judge issued production warrant in Delhi. It is not a mere co-incident. State Police Administration was consciously engaged so that production warrant might not be executed against the petitioner. In the said case, the petitioner was taken by the State Police to Dubrajpur on the strength of production warrant which happens to be the home ground of the petitioner. He was taken to police custody for some days in order to abort the execution of production warrant. The Division Bench of this Court in CRM(D.B.) 4229 of 2022 recorded the submission of the learned Advocate for the CBI that such exercise was m ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
