IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Writ No.571 of 2012 ====================================================== Nirmaljit Singh Narula @ Nirmal Baba .... .... Versus The State Of Bihar & Ors .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Aman Lekhi, Sr. Advocate. Mr. Gaurav Kanth, Advocate Mr. Bindhyachal Singh, Advocate. Mr. Prashant Sinha, Advocate. Mr. V.K. Gulati, Advocate. Mr. Hemant Gulati, Advocate. For the Respondent/s : Mr. Devendra Kumar Singh, Sr. Advocate Petitioner/s

A.A.G-2. ====================================================== CORAM: HONOURABLE MR. JUSTICE SAMARENDRA PRATAP SINGH ORAL ORDER

23-05-2012 State. 2.

Heard learned counsel for the petitioner and the

The petitioner has made two prayers in this writ

application. The first prayer is to restrain the respondents from arresting him in connection with Farbesganj P.S. Case No. 154 of 2012 and the second prayer is to set aside the warrant of arrest dated 18.5.2012 issued by the Chief

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Judicial Magistrate Araria. 3. The petitioner has founded his relief on the ground

that even assuming the prosecution case to be true no offence much less a cognizable offence is made out. Furthermore, the prayer of requisition for warrant by police and order issuing warrant of arrest are not justifiable and legally sustainable being in violation of Section 41A, 73, 78 and 81 of the Cr.P.C. 4. Before I deal with the submissions of the

petitioner, it would be relevant to notice the facts of the case in brief. 5. written One Rakeksh Kumar Singh (respondent no.4) gave information to Forbesganj Police Station on

21.04.2012 stating that he is a private employed person earning a measly sum of Rs. 3000/- per month and on being propelled by his faith in the petitioner and hoping for deposited a sum of Rs. 1000/- in the

financial gains

publicized Bank account of Punjab National Bank belonging to the petitioner between February and March 2012. In

spite of the said deposits, no pecuniary gain came his way and he got a suspicion that he had been cheated. In the meantime, he learnt through the Media that petitioner has

Patna High Court CR. WJC No.571 of 2012 (3) dt.23-05-2012 3/8

duped several persons all over the country

by professing

that if one deposits 1/10th of his income one would solicit his blessings and would gain financially. 6. The petitioner learnt through the Newspapers and TV.

Channels that a case has been instituted with Forbesganj P.S. in the district of Araria in the State of Bihar. He got transit anticipatory bail from the district Court Saket for ten days with effect from 07.05.2012. so that appropriate step in the case in Araria, Bihar. 7. The petitioner moved the court of District & he may take

Sessions Judge, Araria by filing an anticipatory bail application on 15.05.2012, in which notice was issued to the State and case diary hearing in the case was called for. The next date of was fixed as 22.05.2012. There is no at Araria and

regular post of District & Sessions Judge

generally the District & Sessions Judge, Purnea holds circuit court once or twice in a month. Only three days after the hearing of the case the police filed a requisition for issuance of non-bailable warrant of arrest on 18.05.2012, before the Chief Judicial magistrate, Araria which was granted.

8.

The

warrant of arrest is in challenge in the writ

Patna High Court CR. WJC No.571 of 2012 (3) dt.23-05-2012 4/8

application.

The petitioner submits that prior to seeking

requisition of non- bailable warrant of arrest, no notice or summon was issued to him by the police/court. There is no allegation that the petitioner was evading arrest or he did not respond to the summons. According to him the power to

issue warrant would be invoked only when a person or accused does not appear voluntarily or upon issuance of summons does not respond to the notice. Furthermore, no substance of information or accusation justifying issuance of warrant of arrest are given together with documents along with warrant. It is submitted that prayer for requisition of warrant by police on 18.05.2012, in a case which was instituted on 21.4.2012 and in which the scheduled date for hearing of anticipatory bail was already malicious. 9. The petitioner has asserted in the petition that fixed, is

warrant of arrest was issued merely on the requisition filed by the police on the ground that a case under sections 417 and 420 has been instituted against the petitioner. The law does not obligate the police officer to make an arrest merely because a cognizable offence is alleged. The impugned

warrant of arrest is in teeth of provisions of sections 73,78,

Patna High Court CR. WJC No.571 of 2012 (3) dt.23-05-2012 5/8

41A and 81 of the Cr.P.C.

In support of his submissions

the petitioner has relied upon decisions of the Apex Court in the case of S.S. Mhetre Vs. State of Maharastra and others reported in (2011) 1 Supreme Court Cases 694.; Som Mittal Vs. Government of Karnatka State through C.B.I. (2008) 3 SCC 753 ,

Vs. Dawood Ibrahim Kaskar and M.C. Abraham and others. Vs.

others (2000) 10, 438,

State of Maharastra reported in (2003) 2 SCC 649, Inder Mohan Goswami and others Vs. State of Uttaranchal and others (2007)12 SCC 1 10. Mr. D.K. Sinha, learned A.A.G-III appearing for

the State submits that this writ application is not maintainable particularly when the anticipatory bail petition of the petitioner is pending consideration before the District Court Araria. Furthermore, once the petitioner has got

transitory bail, this application is not maintainable in view of Divison Bench Judgment of this Court in the case of Bishundeo Sahu Vs. Statye of Bihar & others reported in 2011(1) PLJR 731. He submits that party cannot have two

parallel proceedings with substantially similar prayer. The instant application is for almost similar relief for which anticipatory bail has been prayed for and thus two parallel

Patna High Court CR. WJC No.571 of 2012 (3) dt.23-05-2012 6/8

proceedings for same cause is impermissible in law. 11. In the case of Bishundeo Sahu, the petitioner had

moved anticipatory bail which was granted on merits only after submission of charge sheet, whereas in the instant case the petitioner was granted transit bail to move the appropriate court for bail, which is not on merit 12. For the present I would not go into the issue

whether the ratio decided in the case of Bishundeo Sahu is applicable in the facts and circumstances of the present case as the matter is not directly in issue in this writ application. 13. I have heard learned counsel for the parties.

The issue involved in this application is whether the requisition making prayer for issuing warrant of arrest or the subsequent order of warrant of arrest satisfies conditions precedent in the law for making of such requisition or passing of such order. It is stated in the petition that

requisition dated 18.05.2012 for warrant was made merely on the ground that a criminal case under section 417 and 420 I.P.C. has been instituted against the petitioner on deals with the matter relating to

12.4.2012. Sections 78 forwarding

of warrant outside jurisdiction and section 79

deals with warrant directed to police officer for execution

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out side jurisdiction. The case of the petitioner is that no reason or substance of information have been forwarded and given together with documents along with warrant. The

warrant of arrest cannot be issued on mere asking nor prayer for it can be made in aid of investigation. The requisition seeking warrant of arrest and the subsequent order of arrest must reflect cogent grounds for its sustainability. 14. affidavit. State is granted four weeks time to file counter The petitioner in the meantime would file

supplementary affidavit annexing on record a copy a copy of requisition as well as order dated 18.05.2012 issuing warrant of arrest. 15. List this case after four weeks before regular Bench

on opening of the Court after Summer Vacation on 18.06.2012 within top ten cases 16. In the meantime no coercive steps will be taken

against the petitioner till the next date of hearing of Anticipatory bail on 22.06.2012 or disposal of this writ application, whichever is earlier. Nothing should be construed as this court having expressed any opinion the merit of the allegations on

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17.

Let this order be communicated through fax at

the cost of the petitioner.

(Samarendra Pratap Singh, J)

M.Rahman/-