TaxTMI 
TaxTMI 
2022 (11) TMI 350
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....r. The facts are being taken from BAIL APPLN. 2707/2022-Amarjeet Sharma v. S.F.I.O. 3. As per the averments made in the bail application, it is seen that on 03.05.2016, the Ministry of Corporate Affairs, Government of India, (hereinafter referred to as "MCA") in exercise of its powers conferred under Section 212 (l)(c) of the Companies Act, 2013, assigned the investigation into the affairs of Bhushan Power and Steel Ltd. (hereinafter referred to as "BPSL") and its 10 group companies to Serious Fraud Investigation Office (hereinafter referred to as "SFIO"). On 08.01.2018 MCA, vide another order granted approval under Section 219(b) & (c) of the Companies Act, 2013 to investigate 20 group companies associated with BPSL. It is contended on behalf of the applicants that they were directed to join the investigation on numerous occasions. They had been cooperative during the investigation, with the investigating agency. However, on 21.03.2022, the SFIO arrested the present applicants and produced them before the learned Special Court, Dwarka. The SFIO was granted two days' custody remand. On 24.02.2022, they were again produced before the learned Special Court and were remanded for 14....
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.... of law. Whether the remand is at the pre-cognizance stage i.e. stage under Section 167(2) of Cr.P.C. or post cognizance stage i.e. under Section 309 of Cr.P.C. application of mind and a speaking order is necessary. It is stated that after 31.05.2022, there is no judicial order extending the remand of the applicants. The endorsement on production warrant cannot be considered to be an order of remand. In either case, the remand order cannot be for more than 15 days and if that be so, the constitutional right of the applicants protected under Article 21 of the Constitution of India is breached and they become entitled for grant of bail. Learned Senior Counsel for the applicants while developing his argument to substantiate that the applicants are entitled for bail on account of their illegal custody submitted two broad arguments firstly, that notwithstanding filing of the complaint in the instant case on 19.05.2022, the custody of the applicants still is in the hands of the Magistrate and is to be governed by Section 167 of Cr.P.C. and, therefore, the Magistrate cannot breach the maximum time limit for remand i.e. 15 days; and secondly he has to pass a reasoned order for each remand,....
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....licants has placed reliance on a decision of the Hon'ble Supreme Court in the matters of Ram Narayan Singh v. State of Delhi AIR 1953 SC 277, Madhu Limaye v. The State of Maharashtra 1969 1 SCC 292 Manubhai Ratilal Patel v. State of Gujarat (2013) 1 SCC 314 FakhreyAlam v. The State of Uttar Pradesh (2021) SCCOnLine SC 5329, Union of India v. Thamisharasi and Ors. (1995) 4 SCC 190 Rakesh Kumar Paul v. State of Assam (2017) 15 SC 67 Suresh Kumar Bhikamchand Jain v. State of Maharashtra (2013) 3 SCC 77 & Serious Fraud Investigation Office v. Rahul Modi & Ors. (2022) SCC OnLine SC 153, Jainam Rathod v. State of Haryana, CRL.A. 640/2022, Sujay U. Desai v. Serious Fraud Investigation, CRL.A. 1023/2022and the decisions of this Court and of other High Courts in the matter of Yogesh Mittal v. ED (2018) 248 DLT 630, Raj Pal Singh v. State of U.P. CRL.REV. 1098/1994, Rajesh Mishra v. State of U.P., CRL.REV. 1891/1994, K.K. Girdhar v. M.S. Kathuria ILR 1988 2 Del. 197 Tunde Gbaja v. Central Bureau of Investigation 2007 (1995) DRJ 429. 8. Learned counsel appearing on behalf of the respondent opposed the instant bail applications. He submits that the instant bail applications do not have any ....
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....g of the compliant till the cognizance is taken the accused remains in the custody of the Magistrate but the Magistrate is not required to pass a speaking order or not to grant remand exceeding 15 days. In the instant case according to him, the cognizance is taken on 20.09.2019 and, therefore, w.e.f. 19.05.2022 i.e., the date of filing of the complaint till the cognizance is taken i.e. on 20.09.2022, the applicants remained in the custody of the Magistrate and the Magistrate was not required to pass speaking order for each remand or to limit the extension of remand only upto 15 days. In any case, according to him, the custody of the applicants cannot be said to be illegal at best it can be an order of defective remand. Having opted not to challenge the order of remand dated 31.05.2022, the applicants now cannot take the ground of any defect in the said order. He submitted that on 06.08.2022 by a specific remand order passed by the Magistrate, the judicial custody was extended upto 17.08.2022. He submitted that, as on date, the applicants are in the judicial custody under a valid order and if at all there was any illegality in the order of remand dated 31.05.2022, the same would not....
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....Mohit Aggarwal (2022) SCC OnLine SC 891 and SFIO v. Nitin Johari & Anr. SCC OnLine SC 1178 Y.S. Jagan Mohan Reddy v. CBI (2013) 7 SCC 439 Serious Fraud Investigation Office v. Rahul Modi & Ors. (2019) 9 SCC 165 & the Judgment of Rajasthan High Court in the case of Mahesh Chand and etc. v. State of Rajasthan and etc. (1984) SCCOnLIne Raj. 43. 11. I have heard Shri Dayan Krishnan, learned Senior Counsel assisted by Shri Arshdeep Singh Khurana for the applicants and Shri Anurag Ahluwalia, learned CGSC assisted by Shri Kritagya Kumar Kait, for the SFIO/respondent. I have considered the submission made by the learned counsel appearing for the parties and perused the record. 12. It is seen that the present applicants are involved in the alleged fraud allegedly resulting in misappropriation of the public money to the tune of Rs.5,435/- Crores. The role assigned to the applicant Amarjeet Sharma is that he was the head of the Accounts Department of BPSL. All the financials statements of the BPSL and various accused companies were prepared by him, which were not reflecting the true and fair view of the affairs of the company. He had signed the balance sheets of BPSL for financial year ....
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...."The applicant-Alkesh Sharma was Ex-President (Accounts), BPSL and also Director in Reward Capital Services Pvt. Ltd. (September 2003 to March 2020), Décor Investment & Finance Pvt. Ltd (June 1996 to August 2007), and Nilanchal Investments Pvt. Ltd. (August 2004 to March 2020). He had signed the balance sheets of Nilanchal Investment Pvt. Ltd. for F.Y. 2013-14 to 2015-16 and Reward Capital Services Pvt. Ltd. for F.Y. 201314 to 2016-17. He was actively involved in the day-to-day affairs of the company at the Kolkata plant. He was looking after siphoning off funds from BPSL through various Kolkata, Delhi and Mumbai based paper entities managed and controlled by various entry-operators. He was the main link between BPSL and various entry operators of paper companies". 14. The narration of the aforesaid facts would reveal that in the instant case the applicants were arrested on 21.03.2022 and the investigation report/complaint has been filed on 19.05.2022, i.e. within 60 days. It is thus seen that the provisions under Section 167(2) (a) (ii) would not have any application and the applicants are not entitled for grant of default bail under the aforesaid provision. Apparently, ....
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....iod of remand cannot exceed beyond 15 days requires deeper scrutiny. 18. In the instant case, the judicial custody of the applicants upto 31.05.2022 is absolutely in accordance with law and there is no quarrel on this. What is being argued is that when the applicants were produced through video conferencing on 31.05.2022, they were further directed to be produced on 17.08.2022 without any formal application or without any reasoned order. Only on production warrant the Special Judge has extended the judicial remand putting his seal and signature. There is a clear breach of the requirement of there being a 15 days maximum remand period. It is thus contended that the endorsement of the concerned Special Judge dated 31.05.2022 for production of the applicant on 17.08.2022 amounts to illegal custody and is in violation of Article 21 of the Constitution. It is also contended that even sub-Section (2) of Section 309 of Cr.P.C. requires that if the court after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjou....
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....Pursuant to the previous order dated O 1.08.2022, accused Amarjeet Sharma and Alkesh Sharma are produced from J/C. Replies of concerned Dy. Superintendent, Central Jain No. 4 also received regarding clarification of remand dated 31.05.2022. It has been clarified in the reports that on 31.05.2022, the accused persons namely Alkesh Sharma and Amarjeet Sharma were remanded by this Court for 17.08.2022. Copies of remand orders are also attached with the replies and some are placed on record. Copies of same be supplied to learned counsel for complainant as well as accused persons, as requested. Both accused persons namely Alkesh Sharma and Amarjeet Sharma are further remanded to J/C till 17.08.2022 i.e. date already fixed. Contd .... 2/-" Reg.No.CC/374/2022 SFIO Vs. Bhushan Airways Services Pvt. Ltd. &Ors. Production warrants be also issued for accused Arun Aggarwal to be produced physically on next date ofhearing i.e. 17.08.2022. Be put up for consideration on 17.08.2022, date already fixed. --SD- (Dr. JagminderSingh) ASJ-03 & Special Judge (Companies Act) Dwarka Courts (SW)/ New Delhi/ 06.08.2022 22. The aforesaid facts and ....
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....(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years; (ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub- section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;] (b) no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him; (c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police. Explanation I.- For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail;]. Explanation II.- If any question arises whether an accused person was produced be....
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.... back the endorsement "remanded to judicial till 11.03.1953". The Hon'ble Supreme Court noted that there was no order of remand committing the accused to further custody till 11.03.1953. The Hon'ble Supreme Court further noted that when on 10.03.1953 the affidavit on behalf of the Government was filed justifying the detention there was no order remanding the four persons to custody. The petitioners in that case were, therefore, directed to be released. 27. In the case of Madhu Limaye (supra) in paragraph No. 12, it has been held that once it is shown that the arrest made by the police officers was illegal, it was necessary for the State to establish that at the stage of remand the Magistrate who directed for detention in jail custody applied his mind to all relevant matters. It has been held that the orders of remand are not such as would cure the constitutional infirmities. In the case of Madhu Limaye (supra), he was arrested on 06.11.1968. The First Information Report was formally registered on 19.11.1968, where the date of occurrence was mentioned as 06.11.1968 and the question which the Hon'ble Supreme Court was dealing with was whether the arrest on 06.11.1968 was illegal i....
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....mmit the accused to custody and extend his remand. The purpose of remand as postulated under Section 167 is that investigation cannot be completed within 24 hours. It enables the Magistrate to see that the remand is really necessary. This requires the investigating agency to send the case diary along with the remand report so that the Magistrate can appreciate the factual scenario and apply his mind whether there is a warrant for police remand or justification for judicial remand or there is no need for any remand at all. It is obligatory on the part of the Magistrate to apply his mind and not to pass an order of remand automatically or in a mechanical manner" The facts in the case of Manubhai Ratilal Patel (supra) would reveal that an FIR was registered against the accused in that case which was challenged in a petition under Section 482 of Cr.P.C. before the High Court. The High Court granted interim relief staying the further proceedings in respect of the investigation. The accused was arrested on 16.07.2012 and was produced before the concerned judicial Magistrate on 17.07.2012. The police prayed for remand which was granted upto 19.07.2012. The application for regular bail ....
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.... Presiding Officer was on leave the concerned Reader directed for taking up the matter on 31.08.2017 and the question that arose before the Coordinate Bench of this Court was the remand beyond 15 days would have entitled the petitioner for release on bail. It was found that the custody of the petitioner in that case was illegal before 31.08.2017, subsequent to which, the custody became legal. The bail application of the petitioner in that case was heard on 29.08.2017 and this court found that on the date of hearing of the bail application since the custody of the petitioner was found to be illegal, therefore, the petitioner was entitled for grant of bail. 29. It is settled principle of law that courts should not place reliance on decisions without discussing how the factual situation of the case they are asked to adjudicate upon fits the facts situation of the decision on which reliance is placed. Circumstantial flexibility, one additional or different fact may make a world of difference between the conclusions to be reached in two cases. Observations of the courts are neither to be read as Euclid's Theorems nor as provisions of the statute, and are never to be taken out of cont....
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.... 30. If the decision of this court in the case of Yogesh Mittal (supra) is carefully perused the conclusion recorded therein in paragraph No. 34 with respect to question No. (iv) stated in paragraph No. 28 would indicate that this court was considering the provision of Section 309 of Cr.P.C. and the conclusion was based on a pronouncement of the Hon'ble Supreme Court in the case of Ram Narayan Singh (supra) &Kanu Sanyal (supra). The question whether in terms of the provision of Section 167 of the Cr.P.C. after filing of the complaint/charge sheet the concerned court is required to pass speaking order or whether the period of remand cannot extend beyond 15 days was not an issue. More importantly the remand order in that case was not under the signature and seal of the concerned Judge but was under the signature of the Reader. The provisions of Section 309 of Cr.P.C. or the prohibition not to pass an order of remand for 15 days is only applicable to the Magistrate and is not applicable to the court of sessions post the stage of cognizance. No reasoning can be found as to why an accused would become entitled for bail in case of illegal detention. On the contrary, the Coordinate bench ....
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....ingh Vs. State in Crl.M.(M) 1306/86 dated 10th October, 1986 decided by M.K. Chawla, J. wherein the bail was granted taking this also as a factor but this was not the main ground for granting the bail. There is no quarrel with the proposition that this can also be a factor while considering for the grant of the bail. This is so far as the legal position is concerned. So far as the grant of bail is concerned the bail can only be granted if the person is in custody. But in the present case, Mr. Harshad S. Mehta is not in custody. Therefore, Mr. Saxena appearing for the C.B.I. fairly conceded that the person who is not. in custody cannot be granted bail and therefore, so far as the bail is concerned, it has become infructuous". 32. It is thus seen that the manner of remand as has been discussed in the case of Harshad S. Mehta (supra) was prior to the filing of the charge sheet/complaint stage. The instant case involves the question post filing of the complaint/charge sheet. Even observation made in paragraph No. 31 would go to show that this court has recognized the well settled legal position that if the detention is illegal the remedy is not the bail but a petition for habeas cor....
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.... judicial custody, for 15 days at a time, up to a maximum period of 60 days in cases of offences punishable for less than 10 years and 90 days where the offences are punishable for over 10 years or even death sentence. It has also been held that in the event, an investigating authority fails to file the charge-sheet within the stipulated period, the accused is entitled to be released on statutory bail. The paragraph No. 18 of the said decision is reproduced as under:- "18. None of the said cases detract from the position that once a charge-sheet is filed within the stipulated time, the question of grant of default bail or statutory bail does not arise. As indicated hereinabove, in our view, the filing of charge-sheet is sufficient compliance with the provisions of Section 167(2)(a)(ii) in this case. Whether cognizance is taken or not is not material as far as Section 167 CrPC is concerned. The right which may have accrued to the petitioner, had charge-sheet not been filed, is not attracted to the facts of this case. Merely because sanction had not been obtained to prosecute the accused and to proceed to the stage of Section 309 CrPC, it cannot be said that the accused is e....
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....ly held that filing of the charge sheet is the sufficient compliance of proviso (a) to Section 167(2) of Cr.P.C. 35. If the facts and the issue involved in the present case are considered in the context of the legal position as has been discussed in various cases, the same would reveal that the complaint in the present case has been filed within a period of 60 days. The Special Judge on 06.08.2022 directed for production of the applicants on production warrant and their further remand was extended. As on date the applicants are under valid judicial remand. On 31.05.2022 the applicants were produced through Video Conference which is an acceptable mode of production and there is endorsement by the concerned Special Judge for their further production on 17.08.2022. The complaint in this case is filed on 19.05.2022 i.e., before 31.05.2022. It is thus seen that on 31.05.2022 when the production was directed beyond 15 days the complaint was already filed. A reading of the provisions under Section 167 of Cr.P.C. nowhere carves out the principle to indicate that the accused would be entitled for bail for any reason whatsoever apart from any other reason then stipulated under the proviso....
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....y the competent court is sufficient compliance of Section 167 of the Cr.P.C., of course the accused, if at all he has any grievance with respect to any illegality or irregularity with respect to the passing of the order of remand post filing of the complaint/chargesheet or if he feels that any of his legal right are infringed, he can certainly raise his grievance in accordance with law but the same would not entitle him for his release on bail under Section 167 of Cr.P.C. It is settled principle that if the words of a statute are clear and free from any vagueness and are, therefore, reasonably susceptible to only one meaning, it must be construed by giving effect to that meaning irrespective of consequences. 37. The language of sub-Section 3 of Section 167 of Cr.P.C. is unambiguous and, therefore, has to be understood in the natural and ordinary sense. The same would indicate that if the accused is remanded in police custody, the reasoned order is sine qua non. The logic behind not permitting the Magistrate to remand an accused beyond 15 days unless the complaint/charge sheet is filed is also based on the fundamental constitutional principles of the right to liberty. Once a char....
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.... SCC 1 & State of Bihar v. Amit Kumar (2017) 13 SCC 751. The Hon'ble Supreme Court recently in the case of Nitin Johari (supra) has further reiterated the same principles. In the decision of Mohit Aggarwal (supra) in paragraph No. 18, the Hon'ble Supreme Court in the context of Section 37 of NDPS Act, has held that the narrow parameters available under Section 37 of the NDPS Act were not satisfied in that case. The length of period of custody or the facts that the charge sheet has been filed and the trial has commenced, are by themselves not consideration for grant of bail but the same can be some of the factors to be considered by a court for grant of bail. 40. In the case of Jainam Rathod (supra), the Hon'ble Supreme Court was considering bail application of an accused against whom the allegations for violation of the provisions of Section 447 of the Companies Act, 2013 and various provisions of the IPC including Sections 406/417/418/420/467/468/471/474/477A were alleged. The Hon'ble Supreme Court in paragraph No. 7 of the said decision had taken note of the fact that the accused therein was in custody since 28.08.2019 and there were 187 accused in all. The Hon'ble Supreme Cou....