TaxTMI 
TaxTMI 
2001 (10) TMI 999
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...., Anil Hooda, V.G. Pragasam, Mrs. Jayshree Anand, G. Sivabalamurugan, Rajeev Sharma, S.S. Shinde, S.V. Desphande, Ranji Thomas, Javed M. Rao, J.R. Das, D.P. Mohanty, K.K. Mahalik, Pramod Swarup, Praveen Swarup, Ms. Pareena Swarup, Prashant Choudhary, A.S. Pundir, V. Singh, Prakash Kumar Singh, V.K. Shukla, Anil Shrivastav, T.C. Sharma, Ms. A. Subhashini, G. Prakash, Ms. Kamini Jaiswal, Dr. Nafis A. Siddiqui, B.B. Singh, V. Krishna Murthy, Ms. Vibha Dutta Makhija, Alok Bhachawat, Uma Nath Singh, Sanjay R. Hegde, S.M. Garg, for the appearing parties. JUDGMENT Banerjee, J. - This batch of writ petitions under article 32 of the Constitution by reason of supposed infraction of article 21, were moved before this Court for the grant of an order for bail in the nature as prescribed under section 438, Code of Criminal Procedure, and in line with the orders dated 28-3-2000 in W.P. (Crl.) No. 256 of 1999 and dated 5-5-2000 in W.P. (Crl.) Nos. 72-75 of 2000 passed earlier by this Court. To crystallize the issue, the orders as passed earlier ought to be noticed at this juncture. The first of the two orders read as below: [JVG Group of Companies. Writ Petition (Crl.) No. 256 of 1999] : ....
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.... a bond to the satisfaction of the Arresting Officer. 2. Such relief shall be made after getting an assurance from him that he will be present in the court concerned on the days when his case is posted. However, we make it clear that it is open to the petitioner to apply to the court concerned for exempting him from personal appearance on condition that a counsel on his behalf would be present on such posting dates and he would not dispute his identity as the particular accused in that case, and further that he would make himself available on any date when his presence is imperatively/needed in that court. 3. We permit the petitioner to move the appropriate High Courts for bringing all the cases pending in different courts within the territorial jurisdiction of that High Court to one single court or more than one court (depending upon the number of cases or the width of the area of the State in concerned). 4. This order will come into effect only if the petitioner would surrender his passport in this Court. Shri Shanti Bhushan, learned senior counsel expressed a doubt that petitioner would have already surrendered his passport before another court pursuant to the order pas....
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....ayers, we shall defer it presently since the cardinal issue relates to the first prayer. As noticed above, supposed infraction of article 21 was taken recourse to, to substantiate the invocation of article 32. 5. Needless to record that article 21 of the Constitution postulates that no person shall be deprived of his personal liberty except according to the procedure established by law. The expression 'personal liberty' admittedly is of widest possible amplitude and cannot in any way whatsoever be, curbed or restricted without offending the constitutional mandate. The decision of this Court in Unni Krishnan v. State of Andhra Pradesh 1993 (1) SCC 645 lends concurrence to the observations as above. 6. We are not called upon to deal with the true scope or the total ambit of article 21: The petitioners have taken recourse to the article stating therein that in the event they are not granted any relief as prayed for, the petitioners resultantly would suffer the consequences which stand negated by the constitutional mandate. 7. The relief spoken of however pertains to section 438 of the Code of Criminal Procedure. It is noteworthy that the 41st report of the Law Commission reco....
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....ould be adverted to shortly, suffice however to record that the liability shall have to be adjudicated: The petitioner's culpability in the offence, if any, shall have to be deci- phered and if this be the foundation of launching of prosecution, the issue then as contended arises, viz., where is the scope of invoking article 21 of the Constitution - Has the article been incorporated in the Constitution to safeguard the offenders? These are few of the issues raised by the learned Additional Solicitor General, Mr. Rawal, appearing for the Union of India. The answer obviously cannot be in the affirmative provided however, there is due sanction of law in the matter of having the petitioners in the custody, but only upon scrutiny of facts. True, section 438 stands included in the code, but its applicability would be rather in rarity than generality. 11. It is at this juncture we feel it inclined to take recourse to a short tabular format [in W.P. (Crl.) Nos. 245-246 of 2000] depicting the factual score, rather than a longish narration form for appreciating the contentions advanced in the matter under consideration. The petitioner herein is involved as principal accused person in : ....
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....he SEBI. It was provided further that till the regulations are notified, all collective schemes which were operating should continue with their operation till the regulations are notified. 14. On 25-3-1998, a FIR bearing No. 149 of 1998 was registered at P.S. Prasad Nagar under sections 420/406/409/120-B IPC against the company and its directors for accepting deposits from large number of people in different schemes and for failure to make repayment inspite of requests - charge-sheet was subsequently filed by the Crime Branch of Delhi Police in the Court of Metropolitan Magistrate, Tis Hazari. Subsequently, on 28-4-1998 a FIR being No. 264 of 1998 was registered at P.S. Prasad Nagar on the complaint of one Om Prakash Mishra against the petitioner alleging that the latter had defrauded and cheated him and other members of his family in accepting money in various schemes of the company and when the complainant asked for the money, the post-dated cheques issued by the company were dishonoured since accounts were closed. It is in regard to the FIR 264 of 1998 as noticed above that the petitioner No. 1 was arrested by the Crime Branch of Delhi Police on 29-6-1998. 15. The factual ....
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....panies is sought to be charged under section 420 Indian Penal Code with the aid of section 120B without there being any material to indicate that the petitioner had either the knowledge or the intention to assist the other accused in commission of the offence. In any event, it is submitted that the offence of conspiracy being in the nature of a continuing offence, its inclusion would be sufficient to establish the connection of one offence with the other for the purpose of converting all the offences into a single offence or in the alternative, into the kind of offence which could only have been committed in the course of the same transaction, within the meaning of section 220 - Admittedly a submission of some effect and this is so irrespective of the factum of about 250 numbers of FIRs lodged throughout the country. We are, however, not making any observation in regard thereto presently. Incidentally, Mr. Shanti Bhushan appearing in support of some of the other petitions also contended more or less in the similar vein as regards the issue of single offence and we do deem it expedient to deal with the same at a stage later in the judgment since we do deem it fit to note some prelim....
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....n 'economic murder' of an entire community of people and, thus, has necessarily to be dealt with utmost severity. The two earlier judgments of this Court spoken above cannot be the guiding feature, since the same were pronounced in the facts and circumstances of each case: Secondly, in both the decisions this Court was cautious enough to record that the same would not be treated as a judicial precedent in any way whatsoever and in view of such express recording, question of the same or a similar order being passed in any other matter would not arise. Mr. Rawal contended that the gravity of massive economic genocide cannot be belittled by terming it as a major offence of cheating or depriving someone of his property. The victim is deprived of his economic life. The crime is no less heinous than putting an end to the life of a person. A large number of suicides which follow such white-collared crime is indicative of the magnitude of the crime involved. Therefore, the fact that a maximum punishment of 7 years is prescribed for a single offence of cheating cannot be pressed into service by the petitioners for seeking relief. The activities of the concerned economic offenders are as a m....
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....t in the instant matter we do not think it proper to cut short the longish narration since we have already on record a version of the petitioner BB Sharma here in support of the writ petition as emphasised by Mr. Shanti Bhushan, the learned senior advocate in support of the petition and the other version available on record through the affidavit of one Raghuvir Singh and other notings available on record - the facts are rather interesting as also revealing and in that perspective the same shall have to be considered vis-a-vis the present petitions under article 32: Needless to record that main trial is yet to commence and as such our endeavour should and ought always to be not to prejudice the trial in any way whatsoever. While it is true that detailed submissions have been made by both the petitioners as also the respondents, we will in this judgment deal with only the basic facts as is required presently and that too without expression of any opinion thereon. 25. The instant petition under article 32 has been at the instance of Shri B.B. Sharma who happened to be the Chairman and managing director of Hoffland group of the Companies. The latter has been engaged in accept- ing d....
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....heating or there is only one offence and one case and it is in this context reliance was placed upon sections 2, 9, 34, 36 and 40 of the Indian Penal Code and it was contended that an offence denotes a thing made punishable by the Indian Penal Code and that an act or omission would constitute an offence. It was emphasized that the singular includes plural and vice versa and the language of section 415 was taken recourse to since the section provides whoever deceives or induces a person to do or omits to do anything commits an offence. It was submitted that many persons may have been induced but since the act of deception was one and the act of deception being issuance of advertisement by the petitioner and his group of companies and there is only one act of deception even if several persons stand cheated. Diverse other provisions of the Code of Criminal Procedure were referred to and we shall presently deal with the same but before adverting thereto, the facts as submitted by the Investors' Association represented by Mr. Goburdhan as regards the issue of exercise of jurisdiction by this Court article 32 of the Constitution ought to be noticed at this juncture. Mr. Goburdhan contend....
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....taining to Sh. Madan Lal having a Saving Bank Account with Oriental Bank of Commerce, Shahdra, Delhi, amounting to Rs. 2,80,000 was purchased/discounted in the said bank at Bisavar and its proceeds were credited to the fake current account of Sh. S.K. Verma and on this basis Sh. B.B. Rai caused the closure of the said fake account. Actually in the absence of proper balances in the said account, the cheque mentioned above was returned unpaid. The whole amount is since outstanding. Thus Shri B.B. Rai by corrupt or illegal means or by otherwise abusing his position as a public servant in conspiracy with others caused heavy pecuniary loss to the bank and corresponding pecuniary advantage to himself or others. These facts constitute offences punishable under section 120B, 420 and section 5(2), read with section 5(d) of the Prevention of Corruption Act. A regular case is, therefore, registered and Sh. H.C. Bisht, Dy. S.P. is deputed to investigate it. Supdt. of Police CBI SPE Dehradun". 27. Whereas the period of offence pertaining to crime RC-1/87 as noticed in the FIR appears to be between 5-1-1986 to 21-1-1986 and the period covered under RC-2/1987 stands between 8th Jul....
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....vit. 5. That I have lodged FIR No. 340/1998 with Prasad Nagar Police Station and the trial in the said case is about to be completed in the Court of Tej Singh Kashyap, the learned Addl. Chief Metropolitan Magistrate, Tis Hazari Courts, Delhi." 29. The submissions of Mr. Shanti Bhushan pertaining to the charges in the matters relate to section 420 only - there seems, however, to be some amount of confusion by reason of the factum of initiation of a proceeding under section 409 in various cases in the court of New Delhi. The charge of section 409 appears to have been framed by the learned Addl. Chief Metropolitan Magistrate, Delhi together with section 420 and 120B by an order dated 5-5-2001. 30. Another redeeming feature as contended by Mr. Goburdhan was that the petitioner has had no intention to honour the commitment which he has undertaken to different agencies. The CLB passed an order on 21-10-1998 as regards the scheme for repayment but the petitioner herein thought it fit not to comply with the same, question of the petitioner being in jail or outside the bars can be of no consequences as regards the desire to make the payment. A scheme for repayment of the investors'....
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....nder article 32 by reason of the so-called infraction of article 21. The petitioner richly deserves the treatment meted out and no credence ought to be placed on the submission of Mr. Shanti Bhushan since his client does not deserve any sympathy from any quarters, far less the Apex Court of the country. It is at this juncture the other writ petitions as filed before this Court and included in this batch of petitions ought to be noticed. (1) Writ Petition No. 405 of 2000 [ M. Lal v. Union of India]. 32. The petitioner herein has been an employee of Hoffland Finance Ltd. and similar are the prayers in the writ petition to wit: consolidation of proceedings and the grant of bail. The affidavit on behalf of Union of India undoubtedly impleads the petitioner herein in the matter of perpetration of fraud and resultantly cheating the public to the tune of about 100 crores on the basis of false promises all over the country. A FIR No. 155/98 under sections 406, 420, 120-B IPC was registered and investigation was taken up by the Crime Branch of Delhi Police. The details of the alleged misdeeds of the present petitioner have been noticed hereinbefore in the matter of Chairman-cum -Ma....
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....that he is in judicial custody since 29-1-2000 and as such invoked jurisdiction of this Court under article 32 for violation of his liberty as guaranteed under article 21 of the Constitution. A contra affidavit filed, however, depicts a contra picture and in terms of the affidavit of Deputy Commissioner of Police Headquarter, Delhi, there are more than 250 complaints alleging mis-appropriation of an amount of more than Rs. 7 crores. While making no comments on the plea of the petitioner's as regards his status as a student but the affidavit is rather candid in recording that sufficient evidence is available that the petitioner was a full-fledged Director of Al Falah Finlease Ltd. and was actively associated with its functioning right from the very beginning. As a matter of fact, the inducement to invest was effected by the petitioner only in different parts of the country and money siphoned off from the accounts of the company to his personal account. As a matter of fact, the petitioner was arrested in FIR No. 43/2000 under sections 406, 420, 409, 468, 471 and 120B and it is on this score Mr. Rawal contended that question of non-involvement of the petitioner does not arise and seek....
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....rds including the Indian Police Medal in August, 1980. It has been the specific case of the petitioner that at least 36 commendation certificates were awarded to the petitioner and the petitioner was awarded some medals also in the war of 1971 with Pakistan. The principal submission on this factual score in support of the petition has been after that serving the country for more than 35 years and in order to get himself engaged joined the Hoffland Finance Ltd. and he has been a victim of circumstances. The petitioner also prayed in the similar vein for consolidation of proceedings and the grant of bail. From the records, however, it appears that there are altogether 31 proceedings against the petitioner herein including some under sections 420, 406, 409, 120B IPC and some under section 138 of the Negotiable Instrument Act and one case under the Gangster Act [490 of 1999 under section 3(2): Kotwali Dehradun, U.P.]. The Senior Superinten- dent of Police Shri Kuldeep Singh in the counter-affidavit on behalf of the Respondent No. 4 has stated that the petitioner has been declared a proclaimed offender by the trial court of Ludhiana and he is also wanted in case FIR No. 58, dated 3-3-19....
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....ore this Court in the name of Ashima Finance & Investment Co. Ltd. v. State of U.P. wherein this court has been pleased to observe : "Having heard learned counsel, we are satisfied that the second petitioner, using as a shield the order dated 14th May, 1998, went into hiding to escape the processes of the law. His writ petition under Article 32 is an abuse of the process of this Court. Were it not for the possible delay to the other matters in which the petitioners are involved, we would have contemplated taking action against the second petitioner for contempt of Court. The writ petition is dismissed. Consequent upon its dismissal, all those who have a claim against the petitioners shall be free to prosecute the same under the law. The learned ASG submits that the police of several States have warrants of arrest against the second petitioner and that it would be in the interests of justice that the CBI should be permitted to retain him under arrest for 48 hours, to be handed over to such police authority as may arrest him. We think this is appropriate to secure the ends of justice in the circumstances and order accordingly. The CBI shall release the second petitioner into th....
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....on under article 32. The counter-affidavits filed in the matter by the different States reveal that various proceedings are pending in various courts under sections 407, 409, 420 and 120B against the petitioner. The methodology adopted have been stated in detail but we do not feel it expedient to record the same at this juncture save and except recording that the same depicts rather a dismal picture of the functioning of the petitioner herein. The records, as a matter of fact, depict that both Anubhav Plantations and Anubhav Finance & Investment firm have collected more that Rs. 400 crores from the investors throughout the country and there are various production warrants from various courts from U.P., Bihar, Madhya Pradesh and other States, pending by reason wherefor and as noticed herein before, the petitioner in spite of obtaining the bail has not been able to utilise the bail order so obtained. As a matter of fact, the petitioner has not been able to even specify the number of complaints under section 138. 43. The above noted are the writ petitions filed in this court invoking the jurisdiction under article 32 of the Constitution and this Bench is confronted with the twin is....
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....st century there ought not to be thwarting of such a right nor even any hesitancy in that regard. Be it noticed herein that maintainability of the writ petition is an issue de hors the ultimate result in the petition - presently the justice-oriented approach and set-up a standard in accordance therewith ought to be the guiding factor so far as the law courts are concerned. Refusal to entertain cannot be in tune with the present approach and rather acts contra. The requirement is a prima facie satisfaction on the basis of the available pleadings as to whether the judicial review prayed for under article 32 needs consideration, if it does, there cannot be any doubt as regards its maintainability. 47. Let us, therefore, analyse the situation in totality and consider the plea as emphasised by the petitioners herein. The records depict that thousand of innocent persons have fallen a prey to the methodology of working of finance companies and firms but does that mean and imply a denial of an opportunity of being heard or considered - the answer, however, cannot possibly be in the affirmative. Doctrine of natural justice warrants a fair opportunity - we do not wish even to adumbrate th....
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....ring in from all parts of the country and in the factual backdrop, as noticed above it is a well-neigh impossibility to come to a finding as regards the infraction of article 21 and since in the factual matrix, no infraction can be identified and, thus, question of sustaining the plea of infringement of article 21 would not arise. In any event the liberty of the petitioners cannot said to have been trifled within the absence of due process of law. Deprivation, if any, cannot be claimed to be not in accordance with due process of law. 49. On the score of anticipatory bail, it is trite knowledge that section 438 is made applicable only in the event of there being an apprehension of arrest. The petitioners in the writ petitions herein are all inside the prison bars upon arrest against all cognizable offences, and in the wake of the aforesaid question relieving the petitioners from unnecessary disgrace and harassment would not arise. 50. In that view of the matter and since no infraction can be identified, the petition also cannot be sustained as regards the issue of anticipatory bail under section 438. 51. A large number of decisions have been relied upon as regards this long....
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.... companies, the arresting officer shall release him on bail on his executing a bond to the satisfaction of the arresting officer. This order obviously tantamounts to an order, invoking the provisions of section 438. The Court adopted the aforesaid procedure to find out a solution in the peculiar situation and being of the opinion that even though the accused is able to get orders for bail from different Courts, where cases are pending, but in view of the large number of cases against the accused throughout the country, it has physically not become possible to release the accused from the custody. If an accused facing a charge under sections 406, 409, 420 and 120B is ordinarily not entitled to invoke the provisions of section 438 unless it is established that such criminal accusation is not a bona fide one, it is difficult to conceive that an accused who is involved in thousands of cases in different parts of the country by cheating millions of countrymen, can be given benefit of the privilege of anticipatory bail as a matter of routine, as was done in the two cases, on the basis of which the present batch of cases have been filed. In the manner in which these white-collared crimes ....
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....rocedure established by law and, consequently, the accused cannot be permitted to make a complaint of infraction of his rights under article 21. In our considered opinion, it would be a misplaced sympathy of the Court with such white-collared accused persons whose acts of commission and omission have ruined a vast majority of poor citizens of this country. Though we agree that in a given case, Court may be justified in directing release of the accused, taking a stock of the entire situation in the case. While, therefore, we agree with the submissions of the counsel for the petitioner-accused that an accused could maintain a petition under article 32, the Court would not be justified in directing the release of such accused under a blanket order like the one, which has been relied upon by the counsel for the accused persons and such a course of action would perpetrate gross injustice. 56. We are, therefore, unable to agree with the method adopted by this Court in Writ Petition (Crl.) No. 256/99 and Writ Petition (Crl.) Nos. 72-75/2000 since in our opinion to adopt the method would be giving a premium to the accused persons. Right of an accused to have speedy trial is now recognis....