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TaxTMI 
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2024 (3) TMI 359
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....Kartikey Yadav and Mr. Lakshay Singh, Advs. in BAIL APPLN. 3741/2022 Mr. Akshay Kumar Singh, Adv. (through VC) JUDGMENT 1. These applications have been filed under Section 438 of the Code of Criminal Procedure, 1973 (in short, 'Cr. P.C.') seeking grant of Anticipatory Bail in CC No. 272/2022 titled Serious Fraud Investigation Office v. Dura Line India Pvt. Ltd. (DIPL) & Ors. pending before the Court of the learned Additional Sessions Judge-03, Special Court (Companies Act), South-West District, Dwarka Courts, New Delhi (hereinafter referred to as the 'Trial Court'). As almost similar submissions have been made by the learned counsels for the Applicants, these applications are being disposed of by this common judgment. 2. The above complaint has been filed by the respondent herein under Section 439(2) read with Section 436 (1)(a), (d) and Section 436 (2) read with Section 212 (6) and Section 212(15) of the Companies Act, 2013 (hereinafter referred to as the 'Act') read with Section 193 of the Cr.P.C., on which, by an Order dated 16.07.2022 passed by the learned Trial Court, the Applicant(s) herein has been summoned as an accused for offence under Sections 447 and 448 read w....
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....nt was not arrested during the course of the investigation by the respondent, he does not have any reason to believe that he may get arrested once he appears before the learned Trial Court in answer to the summons issued to him. 7. He submits that merely because the learned Trial Court, in a few cases, has rejected the application filed by the accused therein for being released on Bail, it cannot also give rise to such a belief in the Applicant(s) that if they apply for Bail before the learned Trial Court, the same shall be rejected and they shall be taken into custody. 8. He further submits that the grant of Anticipatory Bail to the Applicant(s) would, in fact, tantamount to an injunction against the learned Trial Court from exercising its jurisdiction under Section 212 (6) of the Act and, therefore, the present applications are liable to be dismissed. Submissions of the Learned Counsel(s) for the Applicant(s): 9. On the other hand, the learned counsel(s) for the Applicant(s), placing reliance on the judgments of the Supreme Court in Bharat Chaudhary & Anr. v. State of Bihar & Anr., (2003) 8 SCC 77; Ravindra Saxena v. State of Rajasthan, (2010) 1 SCC 684; and of the Di....
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....gation Office, 2023 SCC OnLine Del 893, to submit that persons against whom similar complaints were filed by the respondent before the same learned Trial Court, they were taken into custody, in spite of them not being arrested during the course of investigation by the respondent, and they could obtain Bail only from this Court after a prolonged period of incarceration. 13. They submit that, therefore, the apprehension of the Applicants, that they may be arrested once they appear before the learned Trial Court in answer to the summons, cannot be said to be fanciful or without any basis. 14. They further submit that there are no allegations of the Applicant(s) being a flight risk or likely to tamper with evidence or influence witnesses. 15. The learned counsel for the Applicant in Bail Appln. 3739/2022-Sh. Yogesh Sudhanshu Kumar further submits that the Applicant has joined the investigation, the trial is likely to take long, the Applicant has clean antecedents, is a senior citizen and is a resident of Pune, Maharashtra, having multiple ailments. He submits that the Applicant was granted interim protection vide Order dated 15.12.2022. There is no allegation of him misusing t....
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.... opportunity of hearing to the Public Prosecutor. (2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are no reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, the accused shall, subject to the provisions of section 446A and pending such inquiry, be released on bail, or, at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided. (3) When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code (45 of 1860) or abatement of, or conspiracy or attempt to commit, any such offence, is released on bail under sub-section (1), the Court shall impose the conditions,- (a) that such person shall attend in accordance with the conditions of the bond executed under this Chapter, (b) that such person shall not commit an offence similar to the....
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....; (iii) the possibility of the applicant to flee from justice; and (iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for the grant of anticipatory bail: Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub-Section or has rejected the application for grant of anticipatory bail, it shall be open to an officer incharge of a police station to arrest, without warrant, the applicant on the basis of the accusation apprehended in such application. (1A) Where the Court grants an interim order under sub-Section (1), it shall forthwith cause a notice being not less than seven days notice, together with a copy of such order to be served on the Public Prosecutor and the Superintendent of Police, with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the Court. (1B) The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hear....
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....t of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice. Provided further that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence triable under sub-section (3) of section 376 or section 376AB or section 376DA or section 376DB of the Indian Penal Code (45 of 1860), give notice of the application for bail to the Public Prosecutor within a period of fifteen days from the date of receipt of the notice of such application. (1A) The presence of the informant or any person authorised by him shall be obligatory at the time of hearing of the application for bail to the person under sub-section (3) of section 376 or section 376AB or section 376DA or section DB of the Indian Penal Code (45 of 1860). (2) A High Court or Court of Session may direct that any person who has been released on....
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.... process which directs that if the person in whose favour it is issued is thereafter arrested on the accusation in respect of which the direction is issued, he shall be released on bail. Section 46(1) of the Code of Criminal Procedure which deals with how arrests are to be made, provides that in making the arrest, the police officer or other person making the arrest "shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action". A direction under Section 438 is intended to confer conditional immunity from this 'touch' or confinement. xxx 12. We find ourselves unable to accept, in their totality, the submissions of the learned Additional Solicitor-General or the constraints which the Full Bench of the High Court has engrafted on the power conferred by Section 438. Clause (1) of Section 438 is couched in terms, broad and unqualified. By any known canon of construction, words of width and amplitude ought not generally to be cut down so as to read into the language of the statute restraints and conditions which the legislature itself did not think it proper or necessary to impose. This is especial....
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....ranted and secondly, because the intention was to allow the higher courts in the echelon a somewhat free hand in the grant of relief in the nature of anticipatory bail. That is why, departing from the terms of Sections 437 and 439, Section 438(1) uses the language that the High Court or the Court of Session "may, if it thinks fit" direct that the applicant be released on bail. Sub-section (2) of Section 438 is a further and clearer manifestation of the same legislative intent to confer a wide discretionary power to grant anticipatory bail. It provides that the High Court or the Court of Session, while issuing a direction for the grant of anticipatory bail, "may include such conditions in such directions in the light of the facts of the particular case, as it may think fit", including the conditions which are set out in clauses (i) to (iv) of sub-section (2). The proof of legislative intent can best be found in the language which the legislature uses. Ambiguities can undoubtedly be resolved by resort to extraneous aids but words, as wide and explicit as have been used in Section 438, must be given their full effect, especially when to refuse to do so will result in undue impairment ....
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....nd circumstances of the case and on such conditions as the case may warrant. Similarly, they must be left free to refuse bail if the circumstances of the case so warrant, on considerations similar to those mentioned in Section 437 or which are generally considered to be relevant under Section 439 of the Code. xxxx 20. It is unnecessary to consider the third proposition of the High Court in any great details because we have already indicated that there is no justification for reading into Section 438 the limitations mentioned in Section 437. The High Court says that such limitations are implicit in Section 438 but, with respect, no such implications arise or can be read into that section. The plenitude of the section must be given its full play. xxxx 35. Section 438(1) of the Code lays down a condition which has to be satisfied before anticipatory bail can be granted. The applicant must show that he has "reason to believe" that he may be arrested for a non-bailable offence. The use of the expression "reason to believe" shows that the belief that the applicant may be so arrested must be founded on reasonable grounds. Mere 'fear' is not 'belief', fo....
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....and every case, where a complaint is made of a non-bailable offence and cognizance is taken by the competent court then every court under the Code including this Court would be denuded of its power to grant anticipatory bail under Section 438 of CrPC. 6. We do not think that was the intention of the legislature when it incorporated Section 438 in CrPC which reads thus: "438. (1) When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail." 7. From the perusal of this part of Section 438 of CrPC, we find no restriction in regard to exercise of this power in a suitable case either by the Court of Session, High Court or this Court even when cognizance is taken or a charge-sheet is filed. The object of Section 438 is to prevent undue harassment of the accused persons by pre-trial arrest and detention. The fact, that a court has either taken cognizance of the complaint or the investigating agency has fi....
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.... by a learned Single Judge, in P.V. Narsimha Rao (Supra), has held that an application under Section 438 of the Cr.P.C. shall be maintainable even where summons have been issued by the Court for the appearance of the accused. I may quote from the judgment as under: "3. It is manifest from above that the only short point which arises for adjudication before this Bench is as to whether an application for grant of anticipatory bail under Section 438 of the Code of Criminal Procedure ("Cr.P.C." for short) would be maintainable even in a case where the Court has chosen to issue summons only for the appearance of the accused? xxxx 20. Learned Public Prosecutor, Mr. Dutt, has vehemently contended that since summons have been issued against the accused person in the instant case hence the application under Section 438 Cr. P.C. would not be maintainable. We are sorry we are unable to agree with the contention of the learned counsel. 21. We have already observed above that the Courts while dealing with an application under Section 438 Cr. P.C. enjoy very wide powers, unlike the powers of a subordinate Court which is riddled and hedged in by restrictions. T....
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....Rao (Supra) reiterated as under: "14. While exercising jurisdiction under Section 438 of the Code, the governing factor which is kept in mind by the Court is that there is apprehension of arrest by a person accused of non-bailable offence either at the hands of the police or at the instance of the Magistrate. A person who is yet to be loose his freedom by being arrested asks for freedom in the event of arrest. That is the stage at which taking into consideration the facts and circumstances of each case, it is imperative to protect his freedom." 23. In Deepak Anand (Supra), another learned Single Judge of this Court, placing reliance on the abovementioned judgment in P.V. Narsimha Rao (Supra) and the other judgments referred hereinabove, again held that a provision under Section 438 of the Cr.P.C. would be maintainable even if summons have been issued, on a complaint, by the Magistrate. It was held has under: "6. The question as to whether the court vested with the power to grant anticipatory bail in terms of Section 438 Cr. P.C. can exercise such jurisdiction against the backdrop of order of the court of cognizance issuing process is not res integra. A division....
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....s of this Court in P.V. Narsimha Rao (Supra) and Deepak Anand (Supra). 25. In Deepak Mahajan (Supra), the Supreme Court observed that arrest of a person is a condition precedent for taking him into judicial custody. Taking of the person into judicial custody is followed after the arrest of the person concerned by the Magistrate on his appearance or surrender. 26. The learned counsel for the respondent has submitted that the Applicant(s) can apply for bail once they appear before the learned Trial Court in answer to the summons. However, such application would be maintainable only when first, the Applicants are 'arrested' or taken into 'custody' by the learned Trial Court. For Section 439 of the Cr.P.C. to apply, the 'arrest' or 'custody' of the accused is a pre-condition. Therefore, to put it differently, it is the case of the respondent that once the charge-sheet is filed or a complaint is filed of which cognizance is taken, the provisions of Section 438 of the Cr.P.C. will no longer be available and the accused must suffer the ignominy of arrest, even though during the entire course of investigation he had not been arrested by the investigating agency. This would be contrar....
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.... the prosecution or arrested and enlarged on bail, there is no need for further arrest at the instance of the court. Similarly, we would also add that the existence of a pari materia or a similar provision like Section 167(2) of the Code available under the Special Act would have the same effect entitling the accused for a default bail. Even here the court will have to consider the satisfaction under Section 440 of the Code." 30. In a follow up Order dated 21.03.2023 in Satender Kumar Antil (Supra), the Supreme Court, taking note of the earlier judgment in Mahdoom Bava v. CBI, 2023 SCC OnLine SC 299, clarified that similar principles would also apply in cases of consideration of an application seeking Anticipatory Bail. In Mahdoom Bava (Supra) it was held as under: "10. More importantly, the appellants apprehend arrest, not at the behest of the CBI but at the behest of the Trial Court. This is for the reason that in some parts of the country, there seems to be a practice followed by Courts to remand the accused to custody, the moment they appear in response to the summoning order. The correctness of such a practice has to be tested in an appropriate case. Suffice for th....