Delhi High Court: Non-Bailable Warrants Can Be Issued Against Person Evading Probe But He Must Be Projected As Accused Of Non-Bailable Offence

The Delhi High Court observed that Non-Bailable Warrants can be issued against a person who is evading investigation, however, such person must be projected as a person accused of committing non-bailable offence and evading arrest for the purpose of Section 73 of the Criminal Procedure Code, 1973 (CrPC).

The Court observed thus in a Petition under Section 482 of CrPC, seeking to set aside an Order and quash the non-bailable warrants issued against the accused.

A Single Bench of Justice Amit Sharma explained, “It is no doubt true that Non-Bailable Warrants can be issued against the person who is evading investigation and who may not be formally arrayed as accused in the prosecution complaint, however, such persons must be projected as a person accused of committing non-bailable offence and evading arrest for the purpose of Section 73 of the CrPC. In the peculiar facts of the present case, the respondent, as noted hereinbefore, has shown the petitioner as a ‘witness’.”

The Bench said that the Court cannot reject the Petition as being non maintainable.

Senior Advocate Mohit Mathur appeared for the Petitioner, while Special Counsel Zoheb Hossain appeared for the Respondent.

Factual Background

The Petitioner was a citizen of England, United Kingdom (UK) who had preferred a Petition challenging the Order of the Special Judge, which declined to cancel the non-bailable warrants issued against him. In 2020, the Central Bureau of Investigation (CBI) had registered an FIR under Sections 120B and 420 of Indian Penal Code, 1860 (IPC) and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 (PC Act) against Shri Venugopal Dhoot and one unknown officer of the Consortium of Banks led by the State Bank of India (SBI). As the offences alleged in the FIR were scheduled offences, the Respondent/Directorate of Enforcement (ED) registered an ECIR (Enforcement Case Information Report). It was alleged that Videocon had diverted USD 1.9 billion from loans meant for oil and gas projects, funds routed through multiple entities including Petitioner’s companies.

The investigation revealed that Videocon Group Companies in India and overseas had transactions with the companies of the Petitioner. In pursuance of the investigation, the Petitioner was summoned for his personal appearance and seeking information relating to the investments made by the Videocon Group companies, and in order to ascertain his role in his company and holding assets in siphoning off the investment funds in Videocon Group Companies. It was the ED’s case that the Petitioner failed to provide crucial documents. Hence, the ED moved an application for issuance of open ended non-bailable warrants before the Special Court, which was allowed. The Petitioner’s application for cancellation of non-bailable warrants was dismissed and being aggrieved, he approached the High Court.

Court’s Observations

The High Court after hearing the arguments from both sides, noted, “It was also argued on behalf of learned Special Counsel for the respondent/ED that if a restrictive meaning is given to the words of Section 73 of the CrPC, a piquant situation will arise wherein, there would be no power for issuance of non-bailable warrants with any Court against the person who is evading investigation under PMLA at a stage prior to he/she being “formally” arrayed as an accused. The contention on behalf of respondent/ED that under scheme of PMLA, a person be summoned for investigation, even if, there is no formal accusation qua him cannot override the essential requisites of Section 73 of the CrPC.”

The Court referred to the Judgment in the case of Nazir Ahmad v. King Emperor (1936) wherein the Privy Council was dealing with a case where the Appellant was convicted on the strength of a confession said to have been made by him to a Magistrate under the provisions of Section 164 of the CrPC.

“This Court is unable to agree with the aforesaid contention of the learned Special Counsel inasmuch as the fact that the petitioner is a resident of United Kingdom, and, in view of Non-Bailable Warrants issued against him, he cannot come to file a petition in India and has, therefore, filed the same through his Power of Attorney. Thus, on this ground, this Court cannot reject the present petition as being non maintainable”, it added.

The Court further clarified that it not entering into the issue of whether the summons were served through proper channel or not or whether the summons were deliberately being avoided by the Petitioner, despite his being aware of the same.

“For the limited purpose of this petition, this Court is satisfied that the power exercised by the learned Special Court for issuance of Non-Bailable Warrants was not as per the provisions provided for in the Code. … In view of the aforesaid discussion and in the facts and circumstances of the case, the present petition is allowed and the impugned order dated 09.06.2023 in MISC/DJ/ASJ/98/2023 is set-aside. Non-bailable warrants issued vide order dated 10.02.2023 against the petitioner stand cancelled”, it concluded.

Accordingly, the Apex Court allowed the Petition, set aside the impugned Order, and cancelled the non-bailable warrants.

Cause Title- Sachin Dev Duggal v. Directorate of Enforcement (Neutral Citation: 2025:DHC:11624)

Appearance:

Petitioner: Senior Advocate Mohit Mathur, Advocates Arshdeep Singh Khurana, Sulakshan S. Vedartham, Khushboo Jain, and Chetan Nagpal.

Respondent: Special Counsel Zoheb Hossain, Panel Counsel Vivek Gurnani, Advocates Kartik Sabharwal, Pranjal Tripathi, Daanish Abbasi, Mahesh Gupta, Navin Kumar, and Ashish Kapoor.

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