RAJEEV JHAWAR vs CENTRAL BUREAU OF INVESTIGATION

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* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Reserved on: 12.01.2024
Pronounced on: 24.01.2024

+ BAIL APPLN. 1683/2022
RAJEEV JHAWAR ….. Petitioner
Through: Mr. N. Hariharan, Sr. Advocate along with Mr. Rajiv Bhatnagar, Mr. Anshuman, Mr. Mohit Chaturvedi, Mr. Uddeshya Singh, Ms. Punya Rekha Angara, Mr. Prateek Bhalla, Mr. Sharian Mukherji and Mr. Mueed Shah, Advocates
versus

CENTRAL BUREAU OF INVESTIGATION ….. Respondent
Through: Mr. Jeevesh Nagrath, SPP for CBI along with Mr. Arjun Gaur and Mr. Rajat Gupta, Advocates along with Inspector Ravinder Kumar, IO for CBI.

CORAM:
HON’BLE MS. JUSTICE SWARANA KANTA SHARMA
JUDGMENT
SWARANA KANTA SHARMA, J.
CRL.M.A. 1214/2024 (for clarification of order dated 03.11.2023)
1. The instant application under Section 482 of the Code of Criminal Procedure, 1973 (‘Cr.P.C.’) has been filed on behalf of applicant seeking clarification of order dated 03.11.2023 passed in the present bail application.
2. Learned Senior Counsel appearing on behalf of applicant argues that respondent i.e. CBI is vindictively and deliberately misinterpreting the order dated 03.11.2023 passed by this Court to curtail the personal liberties of the applicant. It is submitted that vide order dated 03.11.2023, this Court had directed the applicant to join investigation before the CBI within 10 days and had also directed that seven-day prior notice shall be provided to the applicant in case of his arrest. It is stated that in addition to this, vide previous orders dated 02.06.2022 and 08.06.2022, this Court had also directed CBI to take appropriate steps regarding the look-out circulars issued by it against the applicant. It is argued that despite these directions being passed, CBI has taken a stand that no seven day notice prior to arrest shall be provided to the applicant and no suspension or cancellation of non-bailable warrants and/or look-out circulars has been directed vide order dated 03.11.2023, due to which the applicant has been constrained to file the present application.
3. It is contended on behalf of applicant that in view of the aforementioned order dated 03.11.2023, the counsel for the applicant had appeared before the learned Special Judge, CBI-19 (PC Act), Rouse Avenue Court, New Delhi on 07.11.2023 and had placed on record a copy of the said order. Thereafter, the counsel for the applicant had sought withdrawal of LOCs issued by the CBI (if any) and non-bailable warrants issued by the learned Special Judge under a bona fide belief that the directions passed by this Court vide order dated 03.11.2023 would be complied with by CBI in letter and spirit. It is stated that to the utter shock and surprise of the applicant, the learned SPP for the CBI made clear the stand as also the interpretation of CBI qua order dated 03.11.2023, by making inter-alia the following submissions:
“…On the other hand, Ld. PP for CBI has vehemently opposed the submissions made on behalf of the applicant/ accused no.3. He has argued that no relief has been granted to the applicant/ accused by Hon’ble Delhi High Court. Rather, he had been directed to join the investigation within ten days from the date of order which expires on 13.11.2023. He further submits that the Hon’ble Delhi High Court has nowhere directed in its order dated 03.11.2023 that an advance notice of seven days is to be served upon accused no.3 by the IO before proceeding to arrest him and rather accused can avail legal remedies within seven days of his arrest. He further submits that the Hon’ble Delhi High Court has not cancelled the NBW of the applicant/accused or even passed any order with respect to the pending LOC, as was directed vide previous orders dated 03.06.2022 and 08.06.2022 passed by Hon’ble Delhi High Court. Accordingly, he has prayed that no relief be granted to the applicant/accused no.3 by this court…”

4. It is argued by the learned Senior Counsel that the bona fides of the applicant are apparent from the fact that in due compliance of the order dated 03.11.2023, the applicant had booked his travel tickets for travelling from Singapore to Delhi on 12.11.2023.
5. It is further submitted that on 07.11.2023, submissions were advanced by the counsel for applicant as well as CBI in the application seeking cancellation of NBWs, in light of order dated 03.11.2023, whereby the learned Special Judge, after considering the same, was pleased to order as under:
“…In view of the same, considering the totality of the facts and circumstances, it is directed that the NBWs issued against applicant/accused no.3 are stayed till 13.11.2023 provided the applicant/accused appears before IO, on or before that date. It is further clarified that the NBWs shall become immediately recalled/cancelled as and when the applicant/ accused appears before the IO, whether on or before 13.11.2023. After the appearance of applicant/accused no.3 before the IO within the stipulated period, the IO shall be at liberty to take a decision whether to arrest the applicant/accused no.3 or not, but only as per the directions given by Hon’ble Delhi High Court vide order dated 03.11.2023. It is further clarified that in the event the applicant/accused no. 3 does not join investigation on or before 13.11.2023, the stay on NBWs issued against the accused shall stand automatically vacated and it can then be executed as per law. As regards the question of recall of LOC is concerned, no such application has been filed on behalf of applicant/ accused or brought to the notice of this court. However, it is expected that the CBI shall bring to the notice of concerned authorities of the orders passed and shall also act in accordance with the directions given by Hon’ble Delhi High Court vide its order dated 03.11.2023 and the present order, so that it is not rendered infructous, due to execution of LOC, on or before 13.11.2023…”

6. It is argued that though the learned Special Judge has passed the above order specifically in respect of non bailable warrants issued against the applicant herein, however, as regards the other misinterpretations of CBI, the Court has failed to pass any orders. Therefore, it is submitted that in view of the aforesaid, the applicant has been constrained to approach this Court seeking clarification on the following issues:
i. Whether the applicant has merely been directed to join investigation qua the 2020 FIR, despite the threat of unnecessary arrest and detention by the CBI (as evident from the submissions of learned Special Public Prosecutor, stated hereinabove).
ii. Whether CBI needs to provide a seven-day prior notice to the applicant, in case arrest of the applicant is considered necessary by the CBI.
iii. Whether the direction and/or relief granted by this Court vide order dated 03.11.2023, sufficiently extends to the non-bailable warrants issued by the learned Special Judge, Delhi, against the applicant, so as to enable the applicant to travel back to India and join investigation, thereby complying with the direction of this Court, effectively.
iv. Whether the direction and/or relief granted by this Court vide order dated 03.11.2023, sufficiently extends to the LOCs opened by the CBI against the applicant, so as to enable the applicant to travel back to India and join investigation, thereby complying with the direction of this Court, effectively.
7. Learned Senior Counsel also submits that the applicant has booked his flight tickets for 22.01.2024 since he has been granted protection from coercive steps in relation to one ECIR pursuant to an order passed by the High Court of Jharkhand at Randi and he has been asked to join proceedings in the said case on 25.01.2024. In view of the same, it is prayed that this Court may also direct that the applicant can return to India by 22.01.2024 and join investigation.
8. Learned SPP for the CBI, on the other hand, vehemently argues that the present application is misconceived and an another attempt on part of applicant to seek extension of time to comply with the orders of this Court. It is argued that this Court, vide order dated 03.11.2023, after taking into account all the facts and circumstances of the case as well as the conduct of the applicant, had issued clear directions that the applicant should join investigation within a period of 10 days, and thereafter, in event of arrest, a seven days’ notice would be given to the applicant. It is submitted that in defiance of the order of this Court, the applicant again did not return to India in order to join investigation, even though the learned Special Judge had stayed the execution of NBWs and clarified the position qua the applicant in the order dated 07.11.2023. It is further argued by learned SPP that the applicant has moved this application, seeking clarity of order dated 03.11.2023, now i.e. after a period of more than two months and in case some clarification was genuinely required by the applicant and if he wished to return to India, he should have immediately moved such an application. In these circumstances, learned SPP submits on behalf of CBI that since no clarifications are required in order dated 03.11.2023, the present application ought to be dismissed.
9. This Court has heard arguments addressed by learned Senior Counsel for the applicant as well as learned SPP for the CBI, and has considered the material placed on record.
10. In the present case, this Court, vide order dated 02.06.2022 (corrected vide order dated 03.06.2022), had disposed of the bail application filed by the petitioner with the following directions, inter alia, to join investigation on 09.06.2022:

“…4. Considering the rival submissions of the learned counsels for the parties, it is ordered that the petitioner will join investigation on 09.06.2022 at 11.00 a.m. and will present himself before the Investigating Officer (IO) at CBI Headquarter, Delhi. It is also ordered that in the event of his arrest, he will be given 7 (seven) days’ prior notice.

5. It is stated by Ms. Chauhan, learned SPP that the IO will ensure that concerned authorities are apprised of today’s order with regard to the LOC..”

11. Thereafter, the petitioner had filed an application, seeking extension of time to join the investigation, and this Court vide order dated 08.06.2022 had directed the applicant to join investigation on 01.07.2022, and disposed of the said application vide following order:

“4.0 In view of the aforesaid reasons i.e. the petitioner is required to make arrangement for supervision of medical treatment/health of his father at Singapore, the present application is allowed. The petitioner by way of last opportunity, is granted extension of time till 30th June, 2022. Let the petitioner join investigation on 1st July, 2022 at 11.00 a.m. and will present himself before the Investigating Officer (IO) at CBI Headquarter, Delhi. It is directed that in the event of his arrest, petitioner shall be given seven days’ prior notice and the IO will ensure that concerned authorities are apprised of today’s order with regard to the LOC. It is made clear that no further extension of time shall be granted to the petitioner…”

12. The applicant herein had again sought extension of time, to appear before the CBI, and vide order dated 03.11.2023, this Court in CRL.M.A. 13598/2022, had directed as under:

“18. In these circumstances, as discussed above, this Court is inclined to direct that the present applicant will join investigation within ten days. In case of event of arrest, the applicant herein will be given seven days time to seek his legal remedies.

19. It is also made clear to the applicant that in case on this occasion, he fails to join investigation within the stipulated time, he will not be entitled to seek pre-arrest bail and in case he moves an application again for extension of time before this Court, the application will be deemed to be barred by his previous conduct.”

13. The applicant now seeks clarification of the aforesaid order, in light of the arguments addressed on behalf of CBI before the learned Special judge on 07.11.2023 on the ground that interpretation of CBI of the aforesaid order was wrong and vindictive.
14. Having heard arguments addressed on behalf of both the parties and given thoughtful consideration to the grounds raised in the present application, this Court notes that the order dated 03.11.2023 is clear in terms that it directs the applicant to appear before the CBI and join investigation within a period of ten days from the date of order, i.e. by 13.11.2023. It was also directed that in case the CBI wishes to arrest the applicant, he shall be given seven days to avail his legal remedies. It was also directed that in case he fails to join investigation this time, no further application for extension shall be entertained. When this Court had given a last opportunity to the applicant to return to India as well as join investigation and had also directed that he shall be given seven days time to avail remedies available to him under law in case of event of arrest, it flows from these directions that there would have been no automatic coercive steps against the applicant in case he returned to India within a period of ten days i.e. by 13.11.2023.
15. Even there had been some confusion among the parties, in this Court’s opinion, the same stood cleared by the order dated 07.11.2023 passed by learned Special Judge wherein the NBWs were stayed, subject to applicant joining investigation on or before 13.11.2023. the learned Special Judge had also directed the IO concerned to take decision qua arrest of the applicant only in compliance of order dated 03.11.2023 passed by this Court. It was further very aptly observed by the learned Special Judge that CBI shall bring to the notice of concerned authorities, the orders passed by the Courts including directions contained in order dated 03.11.2023, so that the orders are not rendered infructous, due to execution of LOC, on or before 13.11.2023. Thus, de hors the contentions which were raised on behalf of CBI before the learned Special Judge, the order dated 07.11.2023 was clear and unambiguous. The relevant portion of this order reads as under:

“A perusal of order dated 03.11.2023 of Hon’ble Delhi High Court shows that applicant/accused had been granted ten days time till 13.11.2023 to join investigation. It has been rightly argued on behalf of applicant/ accused no.3, that if the NBW and LOC of the accused remains pending till 13.11.2023, he will be arrested as soon as he returns back to India. Under such circumstances, there is a valid ground for the applicant/ accused no.3, to seek relief.

As regards the cancellation of NBWs issued against the applicant/accused no. 3 is concerned, it is an admitted fact that NBWs were issued to secure the presence of applicant/accused before the IO, for the purposes of further investigation, which remains pending qua the applicant/accused no. 3. Hence, if the applicant/accused no. 3 appears before the IO, as directed by Hon’ble Delhi High Court, the purpose of issuance of NBWs against him will stand satisfied. Though, it is correctly argued by Ld. PP for CBI that Hon’ble Delhi High Court has not cancelled the NBWs issued against the applicant/accused no.3, however, the court cannot lose sight of the fact that the applicant/accused no. 3 had been granted ten days time to join the investigation. So, the IO cannot proceed to arrest accused no.3 before 13.11.2023. It is only after the applicant/accused appears before the IO, then only the IO can take a decision to arrest the applicant/accused or not.
***
In view of the same, considering the totality of the facts and circumstances, it is directed that the NBWs issued against applicant/accused no.3 are stayed till 13.11.2023 provided the applicant/accused appears before IO, on or before that date. It is further clarified that the NBWs shall become immediately recalled/ cancelled as and when the applicant/ accused appears before the IO, whether on or before 13.11.2023. After the appearance of applicant/ accused no.3 before the IO within the stipulated period, the IO shall be at liberty to take a decision whether to arrest the applicant/ accused no.3 or not, but only as per the directions given by Hon’ble Delhi High Court vide order dated 03.11.2023. It is further clarified that in the event the applicant/accused no. 3 does not join investigation on or before 13.11.2023, the stay on NBWs issued against the accused shall stand automatically vacated and it can then be executed as per law. As regards the question of recall of LOC is concerned, no such application has been filed on behalf of applicant/ accused or brought to the notice of this court. However, it is expected that the CBI shall bring to the notice of concerned authorities of the orders passed and shall also act in accordance with the directions given by Hon’ble Delhi High Court vide its order dated 03.11.2023 and the present order, so that it is not rendered infructous, due to execution of LOC, on or before 13.11.2023…”

16. It is also significant to note that this order was passed by the learned Special Judge on 07.11.2023, while the applicant had to return to India and join investigation on or before 13.11.2023. However, no application for seeking any clarification of order dated 03.11.2023 passed by this Court or challenging the order dated 07.11.2023 passed by learned Special Judge was preferred by the applicant.
17. Thus, if the applicant required any clarification with respect to the directions contained in order dated 03.11.2023, he could have immediately approached this Court after the order was passed, or after the learned Special Judge had passed the order 07.11.2023, and before 13.11.2023 i.e. when the ten days granted to the applicant to join investigation were to expire. However, very conveniently, the applicant chose to remain indifferent to the orders passed by this Court and the learned Special Judge, and failed to join investigation by 13.11.2023, and now after a period of more than two months, the applicant has approached this Court for seeking clarifications and extension of time to join investigation.
18. In this Court opinion, for the reasons stated hereinabove, no clarification is required in the order dated 03.11.2023, and no ground is made out for granting any further extension to the applicant for joining investigation since despite repeated directions and .
19. Accordingly, the present application stands dismissed.
20. The judgment be uploaded on the website forthwith.

SWARANA KANTA SHARMA, J
JANUARY 24, 2024/ns

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