9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2024 (3) TMI 359 - HC - Companies LawSeeking grant of Anticipatory bail - maintainability of application under Section 438 of the Cr.P.C. - reasons to believe - non-bailable offences contained in Sections 437, 438 and 439 of the Cr.P.C. - HELD THAT - Section 437 and Section 439 of the Cr.P.C. relate to grant of Bail to any person who has been arrested or is in custody . Section 438 of the Cr.P.C., on the other hand, gives a power to the Court to grant Anticipatory Bail to a person who is yet to be arrested or taken into custody . In BHARAT CHAUDHARY AND ORS. VERSUS STATE OF BIHAR AND ORS. 2003 (10) TMI 692 - SUPREME COURT the Supreme Court has held that the power under Section 438 of the Cr.P.C. is available to the High Court and the Court of Sessions, even when cognizance is taken or a chargesheet has been filed. In RAVINDRA SAXENA VERSUS STATE OF RAJASTHAN 2009 (12) TMI 1063 - SUPREME COURT , the Supreme Court reiterated that Anticipatory Bail can be granted to an accused at any time, so long as the accused has not been arrested. The High Court or the Court of Sessions cannot refuse to exercise its powers under Section 438 of the Cr.P.C. and leave the matter to the Magistrate only on the ground that the challan has now been presented. Coming to the principles that would be applicable while considering the application of the Applicant(s) for grant of Anticipatory Bail, there is no gainsay that the Applicant(s) would have to show that they have reason to believe that they may be arrested - As held by the Supreme Court in GURBAKSH SINGH SIBBIA VERSUS STATE OF PUNJAB 1980 (4) TMI 295 - SUPREME COURT , the belief that the Applicant(s) may be so arrested must be founded on reasonable grounds and not on mere fear or a vague apprehension . In the present case, the applicant(s) have met the above test. The learned counsel(s) for the Applicant(s) have placed reliance on various judgments of this Court wherein the accused, who had been similarly summoned by the same Magistrate, were taken into custody and had to suffer the ignominy of being in jail for a long period of time before they were granted Bail by this Court. As far as merit is concerned, in SATENDER KUMAR ANTIL VERSUS CENTRAL BUREAU OF INVESTIGATION ANR. 2022 (8) TMI 152 - SUPREME COURT , the Supreme Court had placed cases where additional conditions of compliance of provisions of Bail are to be met, including Section 212 (6) of the Act, in Category C . It was held that where the accused has not been arrested consciously by the prosecution, there is no need for further arrest of the accused at the instance of the Court. In the entire process of investigation leading to the filing of the complaint, the Applicant(s) were never arrested by the respondent and it is not disputed that the Applicant(s) have cooperated in the investigation. Applying the test as laid down by the Supreme Court in Satender Kumar Antil, therefore, the Applicant(s) are entitled to grant of Anticipatory Bail. It is, therefore, ordered that in case of arrest, the Applicant(s) be released on bail subject to fulfilment of conditions imposed - bail application allowed.
Issues Involved:
1. Maintainability of Anticipatory Bail under Section 438 Cr.P.C. 2. Distinction between 'arrest' and 'custody'. 3. Applicability of Section 212(6) of the Companies Act, 2013. 4. Conditions for granting Anticipatory Bail. Summary: 1. Maintainability of Anticipatory Bail under Section 438 Cr.P.C.: The High Court considered whether an application under Section 438 Cr.P.C. is maintainable when the accused has been summoned by the Trial Court. The respondent argued that once a complaint is filed and summons are issued, the application under Section 438 Cr.P.C. is not maintainable, and the accused must seek regular bail under Section 439 Cr.P.C. However, the Court, referencing the Supreme Court judgments in *Bharat Chaudhary v. State of Bihar* and *Ravindra Saxena v. State of Rajasthan*, held that anticipatory bail is maintainable even after cognizance is taken or a charge-sheet is filed, as the object of Section 438 is to prevent undue harassment by pre-trial arrest and detention. 2. Distinction between 'arrest' and 'custody': The respondent contended that there is a legal difference between 'arrest' and 'custody', and anticipatory bail under Section 438 Cr.P.C. is only applicable before arrest. The Court rejected this argument, citing the Supreme Court's interpretation in *Directorate of Enforcement v. Deepak Mahajan* and *Gurbaksh Singh Sibbia v. State of Punjab*, which clarified that anticipatory bail can be granted even if the accused is to be taken into custody by the Court upon appearance. 3. Applicability of Section 212(6) of the Companies Act, 2013: The respondent argued that the special conditions under Section 212(6) of the Companies Act circumscribe the grant of bail and that general rules for bail consideration do not apply. The Court, referencing the Supreme Court's judgment in *Satender Kumar Antil v. CBI*, held that if the accused was not arrested during the investigation, the general principles of bail apply, and there is no need for further arrest at the instance of the Court. 4. Conditions for granting Anticipatory Bail: The Court analyzed whether the applicants had a reasonable apprehension of arrest. It was noted that in similar cases, accused persons were taken into custody upon appearing before the Trial Court. The Court concluded that the applicants had a reasonable basis for their apprehension. The Court also considered that the applicants were not flight risks, had no allegations of tampering with evidence, and had cooperated during the investigation. Consequently, the Court granted anticipatory bail to the applicants, subject to conditions to ensure their appearance in trial and prevent tampering with evidence or influencing witnesses. Conclusion: The applications for anticipatory bail were granted, with the Court emphasizing that the severity of allegations alone does not justify pre-trial incarceration. The applicants were ordered to be released on bail upon arrest, subject to furnishing a personal bond and adhering to specified conditions to safeguard the trial process.
|
