SUSHAMA MEHER Vs. STATE OF ORISSA (VIG )

JUDGEMENT

(1.) This is an application under section 482 of Cr.P.C. filed by the petitioner Sushama Meher challenging the order dated 24.04.2018 passed by the learned Special Judge(Vigilance), Bhubaneswar in T.R. No. 44 of 2017 in issuing non-bailable warrant of arrest against her. The said case arises out of Cuttack Vigilance Cell P.S. Case No.07 of 2016.

(2.) It is submitted by the learned counsel for the petitioner that during course of investigation of the case, the petitioner approached this Court in an application under section 438 Cr.P.C. in ABLAPL No. 7686 of 2016 and this Court vide order dated 17.05.2016 the following order was passed:

(3.) It is further submitted that charge sheet was submitted on 29.08.2017 under section 13(2) read with section 13(1)(e) of the Prevention of Corruption Act, 1988 read with section 109 of the Indian Penal Code against the petitioner and co-accused Sukadev Meher who is the husband of the petitioner and after receipt of the charge sheet, the learned Special Judge (Vigilance), Bhubaneswar vide order dated 31.10.2017 has been pleased to take cognizance of the offences under which charge sheet was submitted and issued summons against both the accused persons. It is further submitted that even though the Court issued summons against the petitioner and there is no service of summons, when the case was posted on 24.04.2018 and the service return was not back, the Court directed issuance of fresh summons and posted the case to 30.05.2018 for appearance of the petitioner but on the very day, at a later stage when the service return was back without proper service, the learned Court held that the petitioner was keeping away from service of summons and accordingly issued non-bailable warrant of arrest fixing 10.05.2018 for her production. It is contended that the impugned order suffers from non-application of mind and it cannot stand under the judicial scrutiny inasmuch as without proper service of summons on the petitioner, the learned Special Judge was not justified in observing that the petitioner was keeping away from service of summons. It is further contended that even section 438(3) of Cr.P.C. provides that while when the accused is on anticipatory bail, if the Court after taking cognizance of offence decides to issue a warrant in the first instance against that accused, he has to issue a bailable warrant in conformity with the direction of the Court who has passed the order under sub-section (1). It is further contended that the impugned order was also passed in respect of coaccused Sukadev Meher and the said accused challenged the order before this Court in an application under section 482 of Cr.P.C. in CRLMC No. 1707 of 2018 and this Court disposed of the matter on 12.06.2018 holding that in the event the coaccused surrenders before the learned Special Judge(Vigilance), Bhubaneswar and moves for bail, he shall be released on such terms and conditions as the learned Special Judge, Bhubaneswar may deem fit and proper. Learned counsel further submitted that the petitioner being a lady, there is every chance of her being arrested in pursuance of the impugned order and since the petitioner has not flouted the terms and conditions of the order of anticipatory bail and she is also ready and willing to appear before the learned trial Court on any date fixed by this Court as well as to cooperate in the trial, unless the impugned order is quashed and the petitioner is directed to be released on bail on surrendering before the Court below, she will be seriously prejudiced.