TaxTMI 
TaxTMI 
TaxTMI 
2021 (9) TMI 1449
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....y the respective senior counsel, who have vehemently pressed into service the most cherished principle, which forms integral part of the Constitution and the arguments revolve around the Applicants being deprived of their liberty, without following the due process of law. It is asseverated that liberty of a citizen is of paramount importance and it cannot be incised and the investigating agency should be conscious of the well settled principle that the power to arrest is altogether different than the need for arrest. Denying a person his liberty is argued to be a serious matter and the collective submission is to the effect that the CBI did not deem it ft to seek the custody of the Applicants, during the course of investigation nor were they brought into custody when the charge-sheet was instituted, but when the Applicants put an appearance before the learned Special Judge, on issuance of summons and moved an application for bail, they ought to have been released on bail. The fulcrum of the arguments of the respective learned senior counsel is the latest decision of the Hon'ble Apex Court in case of Aman Preet Singh V. CBI through Director Cri.Appeal No.929/21 dated 02/09....
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....s. V. Ist Munsif Lower Criminal Court, Baharaich & Ors 1989 SCC Online All 228 and decision of the Kerala High Court in case of Sreekumar V. State of Kerala 2008 SCC OnLine Ker 318, is pressed into service. Learned senior counsel would submit that such an approach would result in travesty of justice, which at any cost, cannot be tolerated. The hype created in case of economic offences in which the present case falls into is delusion is another submission and to that effect, decision of the Hon'ble Apex Court in case of Sushila Aggarwal & Ors. V. State (NCT of Delhi) & Anr. (2020) 5 SCC 1 is cited. The pivotal point on which the release of the Applicants is sought to be propagated is the principle of 'Bail is the rule and jail is an exception'. 3. I have heard Mr.Venegaonkar, learned counsel representing the CBI. He admit that the CBI did not seek custody of the Applicants during investigation, but he would urge that when the Applicants moved an application for being released on bail, on appearance before the Special Judge, by referring to the material compiled in the charge-sheet, the CBI opposed the application for release on bail, by inviting attention....
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....HFL of the value of Rs.3700 crores which was the highest single subscription of an institution. The investigation revealed that M/s. DOIT Enterprises (India) Pvt. Ltd. was registered with RoC on 30/03/2012 and Radha Kapoor Khanna and Ms. Roshani Kapoor are the directors in the said company. Investigation revealed that M/s. DOIT is wholly owned by a company namely M/s. Morgan Credit Private Limited (MCPL) which in turn is equally held by three daughters of Rana Kapoor namely Radha K. Khanna, Raakhe K Kapoor and Roshini Kapoor (33% each). This company claimed that it is engaged in development / investment in new age Urban Ventures. However, investigation conducted so far revealed that this company has not carried out any actual business activity during the relevant period. (c) That during the period 2018-19 Rana Kapoor, the Promoter Director and the then CEO of M/s. Yes Bank Limited entered into a criminal conspiracy with Kapil Wadhawan, Promoter Director of M/s DHFL and others for extending fnancial assistance to M/s. DHFL by M/s. Yes Bank Limited in lieu of substantial undue beneft to himself and his family members through the companies held by them. (d) That in furtherance of ....
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....Ltd.) and allowed disbursement on 26/04/2018 in the account of M/ s. DOIT without any due diligence, on the request of Radha K. Khanna made on the same date of the disbursement. This bridge loan was sanctioned to aforesaid company in violation of the guidelines of the project fnance policy/retail credit policy and in absence of any scheme/policy for bridge loan. Investigation further revealed that in pursuance of criminal conspiracy, another loan application for Rs.600 crores was given by M/s. DOIT under the signature of Radha Kapoor Khanna. Apart from the collateral security mentioned in the loan application, borrower also proposed personal guarantee of Radha Kapoor Khanna and corporate guarantee of M/s. Bliss Address Private Limited and M/s. DOIT Resort (Goa) Private Limited. (g) That it has been further alleged that loan of Rs.600 crores was sanctioned by M/s. DHFL to M/s. DOIT Urban Ventures (India) Private Limited on the basis of a mortgage of a sub-standard property having very meager value and by considering its future conversion from agricultural land to the residential land. It is also alleged that M/s. DHFL has not redeemed the amount of Rs.3700 crores invested by M/s....
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....sed by learned Judge. All the three Bail Applications are rejected by the common order passed on 18/09/2021. As far as Applicant Rajiv Anand is concerned, he moved an Application for anticipatory bail on receipt of summons from the Trial Court. Expressing that there is no apprehension of arrest, the Application came to be rejected with liberty granted to move an application for regular bail. Accordingly, on 16/09/2021, the Applicant fled a regular bail application and entered his physical presence before the court. On 20/09/2021, the Application is rejected and the submission of Mr. Ponda is to the effect that the rejection is in derogation of the principles laid down by the Apex Court in case of Aman Preet Singh (supra). 8. The Code, which governs the procedure applicable to all the criminal proceedings succinctly sets out the distinction between an 'inquiry', 'investigation' and 'judicial proceedings'. The Code provides not merely for judicial proceedings or trial of alleged offence, but contains exhaustive provisions for investigation thereof. Chapter XII of the Code sets out the provision for investigation into cognizable and non-cognizable offence, whi....
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....ng been remanded by judicial order, or having offered himself to the court's jurisdiction and submitted to its orders by physical presence. No lexical dexterity nor precedential profusion is needed to come to the realistic conclusion that he who is under the control of the court or is in the physical hold to an officer with coercive power is in custody for the purpose of Section 439. The word is of elastic semantics but its core meaning is that the law has taken control of the person." 10. It is imperative to state that the powers under Section 170 of the Code are to be exercised by the Magistrate as per the contingency emerging from the factual matrix qua each of the criminal proceeding being brought to the Courts' jurisdiction. It would be worth while, to observe that Section 170 in the Code is a procedural provision depending upon the facts and circumstances, emerging before the Court and cannot be in any case, classified as a mere formality, as sought to be advanced. Further, Section 170 contemplates grant of bail looking to the nature of formality if the offence is bailable. There is, however, no indication or mandate culled out in Section 170 as regards the power of ....
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.... where the offences alleged indicate that they are grave, heinous, barbaric, seditious or aimed at damaging the financial health of the State, then in that case the concerned Court is expected to take into consideration various factors and parameters, including the gravity of the accusations which by this time are crystallized in form of the charge-sheet while deciding the entitlement of the accused as to whether to admit him to bail or otherwise. 13. Minute perusal of the judgments cited at the bar and also the recent decision of the Hon'ble Apex Court in case of Aman Preet Singh (supra) makes it abundantly clear that it is not the ratio for the proposition that any accused guilty of serious, heinous or a crime of high magnitude can be released on bail by operation of Section 170 of the Code. The Court in fact, is duty bound to apply its mind to variable factors, embalming the criminal proceedings before exercising its power for grant of bail or otherwise. In any case, total reliance placed on the judgment of the Apex Court cited supra, cannot come to the aid of the present Applicants obviously for the reason that going by their own act of they applying for bail indicates tha....
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....ul information is to be elicited then arrest can be adverted to. Arrest can also become necessary if the offence is of grave nature and there is likelihood of the offender absconding or fleeing away from justice. This would all depend upon the facts and circumstances of each case as in every case, full co- operation from a suspect would convert him to an accused and from an accused to a convict and to bring the investigation to its logical end. When on completion of investigation, the final report is tendered before the Court, the Court is duty bound to aid and assist the cause of the prosecution and the power and discretion to grant bail would always depend upon the claim and demand raised by the prosecution for custody of the offender lest police or magisterial for having the profound investigation, deep probe and arrival of the conclusion, indicating total involvement of the accused. 15. In the instant case, it is apparent that all the Applicants are alleged to have indulged in commission of offences, which have resulted in serious dent to the financial health of the State as well as defrauding the public at large. Such offences are occurring in plenty and have resulted in stul....