2024 (3) TMI 411 - HC - Companies Law

Seeking grant of bail - long incarceration of the applicant without any hope of commencing the trial at least for a few years - serious ailments with which the applicant has been suffering at the age of 62 years - offences punishable under Section 447 of the Companies Act 2013 and Sections 417 420 r/w 120-B of the Indian Penal Code 1860 - HELD THAT - The Hon ble Supreme Court in case of Jainam Rathod 2022 (4) TMI 1421 - SUPREME COURT has granted bail to the applicant who was being prosecuted for violation of the provisions of Section 447 of the Act of 2013 as well as various provisions of the Indian Penal Code 1860 including Sections 406 417 418 420 467 468 471 474 and 477A. A Special Leave petition preferred by the appellant was dismissed by the Supreme Court on 27th January 2020 with observations that it was always open for the appellant to move a fresh application for bail - The Hon ble Supreme Court has also noted it s judgment in the case of Serious Fraud Investigation Office V. Nittin Johari 2019 (9) TMI 570 - SUPREME COURT while granting bail to the appellant Jainam. The appellant was released in light of the fact that in the absence of a fair likelihood of the trial being completed within a reasonable period personal liberty of the appellant is to be protected in case of delay in conclusion of the trial. It is well settled that if co-accused in the case are equally placed meaning thereby on the same pedestal then there is no reason to deny bail to the accused where other co-accused are not in custody. Indubitably investigation is over and the applicant s detention is no more required in judicial custody. Nothing is to be recovered at the instance of the applicant. Almost all the evidence is in the form of documents which is in the custody of the respondent No. 1. Learned Senior Counsel would contend that there is no reasonable apprehension of the applicant absconding or fleeing away from justice since he has always been co-operating with SFIO s investigation for which he has been called for almost 30 times. A look out notice has already been issued against the applicant which shall deter him from leaving the country. Learned Senior Counsel submits that the applicant would surrender his passport - Since the case is predominately based on documentary evidence and investigation will mainly involve analysis of accounting entries and financial statements and other documents the Counsel submits that there would no question of tampering with the same. Dehors merits and demerits as well as the statutory embargo as contemplated in Section 212 (6) (ii) of the Act of 2013 powers of this Court under Article 21 of the Constitution are unfettered in the sense while exercising constitutional jurisdiction statutory restrictions per se do not oust the ability of this Court to grant bail on the ground of violation of part III of the Constitution; inarguably statutory restrictions vis-a-vis constitutional jurisdiction will have to be harmonized. The applicant Hari Sankaran be enlarged on bail subject to fulfilment of conditions imposed - bail application allowed.

Summary

Issues Involved:
1. Bail application by the accused.
2. Long incarceration and health issues of the accused.
3. Legal precedents and constitutional rights.

Summary:

Issue 1: Bail Application by the Accused
The applicant sought bail in connection with Criminal Complaint No. 20 of 2019, prosecuted by the Serious Fraud Investigation Office (SFIO) for offenses under Section 447 of the Companies Act, 2013, and Sections 417, 420 r/w 120-B of the Indian Penal Code. The applicant was arrested on 1st April 2019, and his bail application was previously rejected by the Special Judge on 3rd October 2019.

Issue 2: Long Incarceration and Health Issues of the Accused
The applicant argued the long incarceration since his arrest on 1st April 2019 violated his fundamental right under Article 21 of the Constitution. He highlighted his severe health issues, including serious cardiovascular diseases, diabetes, and other ailments, substantiated by multiple medical reports. The applicant had undergone multiple heart surgeries and required constant medical attention. The court noted that the applicant had been in custody for nearly five years and was the only accused still in custody among the 30 accused in the case.

Issue 3: Legal Precedents and Constitutional Rights
The applicant's counsel cited various legal precedents, emphasizing the right to a speedy trial under Article 21 of the Constitution. The court referenced the Supreme Court's decisions in cases like Jainam Rathod Vs. State of Haryana, Sujay U. Desai Vs. SFIO, and Union of India Vs. K.A. Najeeb, which granted bail to accused persons in similar circumstances due to prolonged incarceration and the unlikelihood of a timely trial. The court also noted that co-accused in similar positions had been granted bail, and the applicant's continued detention would violate his constitutional rights.

Conclusion:
The court granted bail to the applicant, considering his long incarceration, severe health issues, and the constitutional right to a speedy trial. The applicant was ordered to furnish a P.R bond of Rs. 1,00,000/- with sureties, surrender his passport, and comply with other conditions to ensure his presence during the trial and prevent tampering with evidence. The court dismissed the respondent's request to stay the order, allowing the applicant to furnish cash security and release on bail.