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TMI Blog2020 (1) TMI 904X X X X Extracts X X X X X X X X Extracts X X X X ..... er fact that Corporate Entity was used to perpetuate the illegal activities of the absconding accused person is also a factor to be borne in mind. Under Section 84 Cr.P.C., the objection has to be filed by any person other than the proclaimed person. Considering the share holding in the company of M/s. OIS Advanced Technology Pvt. Ltd., the Trial Court found no merit in the plea of the petitioner that the company is a distinct corporate entity, separate from the individual and the property whereof cannot be attached. That being the situation, learned Court below was not inclined to set aside the order/ recall the order of attachment of properties of the company M/s OIS Advanced Technology Pvt. Ltd. Petition dismissed - decided against petitioner. - CRL.REV.P. 536/2017 & Crl.M.A. 11828/2017, 18812/2017 & 19833/2017 - - - Dated:- 13-1-2020 - MR. SURESH KUMAR KAIT J. Petitioner Through: Mr. Akhil Sibal, Sr. Adv. with Mr. Avneesh Arputham Mr. Shantanu, Advs. Respondent Through: Mr. Hirein Sharma, APP for State. SI Data Ram IGIS Crime Branch. JUDGMENT (ORAL) 1. The present petition is filed under sections 397 read with sections 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ating officer moved another application before the Trial Court seeking issuance of open ended warrants against said accused so that a Red corner notice could also be opened by CBI, then Trial Court vide order dated 04.01.2017 allowed the application. On 11.01.2017, IO submitted a report stating that the accused could not be traced despite having carried out raids at various places in Delhi and Haryana and further requested initiation of proceedings under Section 82 Cr.P.C. After considering the said request, learned Trial Court issued process under Section 82 Cr.P.C. against accused Sanjay Bhandari which was to be executed through the IO with the direction to execute the said process as per its mandate and ensure the presence of the process server along with the report on 28.02.2017. It was further directed that besides execution of process through normal course, proclamation proceedings against the accused were to be published in an English daily (Hindustan Times) as well as in a Hindi Newspaper having local circulation over the areas in Delhi and Haryana. Accordingly, investigating officer after issuing the proclamation, moved an application before the Ld. Trial Court seeking iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been entirely disregarded in the impugned order. 9. Moreover, as per section 83 of Cr.P.C., where at the time of the issue of the proclamation the Court is satisfied, by affidavit or otherwise, that person in relation to whom the proclamation is to be issued (a) is about to dispose of whole or any part of his property, or (b) is about to remove whole or any part of property from local jurisdiction of the Court, it may order the attachment simultaneously with the issue of the proclamation. Such order shall authorise attachment of any property belonging to such person within the district in which it is made and it shall authorise attachment of any property belonging to such person out of such district when endorsed by the District Magistrate within whose district such property is situate. 10. Learned senior counsel submits that in the present case, the company is not an accused and property in question belongs to petitioner company, therefore, learned court below has illegally passed an order by attaching property of the petitioner company. Moreover, as per section 83 of Cr.P.C., the Court issuing a proclamation under Section 82 may, for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and more. 12. Learned senior counsel submits that it has always been the well-recognised principle of common law, however, in the course of time, the doctrine that the corporation or a company has a separate legal entity of its own, has been subjected to certain exceptions by application of the principle that the veil of the corporation can be lifted and its face examined in substance. The doctrine of the piercing of corporate veil thus marks a change in the attitude that law had originally adopted towards the concept of the separate entity or personality of the corporation. As a result of impact of the complexity of economic factors, juridical decisions have sometimes recognised exceptions to the rule about juristic personality of the corporation. 13. The Hon ble Supreme Court in the case of Balwant Rai Saluja Anr. vs. Air India Limited Ors.: (2014) 9 SCC 407 has observed and held as under: 70. The doctrine of piercing the corporate veil stands as an exception to the principle that a company is a legal entity separate and distinct from its shareholders with its own legal rights and obligations. It seeks to disregard the separate persona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty of a company and impose liability upon the persons exercising real control over the said company. However, this principle has been and should be applied in a restrictive manner, that is, only in scenarios wherein it is evident that the company was a mere camouflage or sham deliberately created by the persons exercising control over the said company for the purpose of avoiding liability. The intent of piercing the veil must be such that would seek to remedy a wrong done by the persons controlling the company. The application would thus depend upon the peculiar facts and circumstances of each case. 80. The present facts would not be a fit case to pierce the veil, which as enumerated above, must be exercised sparingly by the Courts. Further, for piercing the veil of incorporation, mere ownership and control is not a sufficient ground. It should be established that the control and impropriety by the Air India resulted in depriving the Appellants-workmen herein of their legal rights. As regards the question of impropriety, the Division Bench of the High Court of Delhi in the impugned order dated 02.05.2011, noted that there has been no advertence on merit, in respect of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the miscellaneous applications filed by the petitioners, the process under Sections 82/83 Cr.P.C. against accused could not be completed and accused Sanjay Bhandari has also yet not been declared proclaimed offender. 17. I note, learned counsel on behalf of M/s. Kotak Mahindra Prime Limited before the Trial Court submitted that it is not disputed fact that Sanjay Bhandari had absconded and the property was on hypothecation of the bank. The bank s money was involved in the case and they have obtained orders from the Court of ld. ADJ and that being the situation, their right should not be prejudiced and application under Section 451 Cr.P.C. should be adjudicated and property be given on superdari to them. 18. It is not in dispute that property/cars belonging to M/s OIS Advanced Technology Pvt. Ltd. and registered in the name of company M/s CIS Advanced Technology Pvt. Ltd., being a corporate entity, does not in any manner mean that it is distinct than that of Sanjay Bhandari, who is absconding accused. While passing impugned order, learned Trial Court has given two reasons; firstly, majority shareholding belongs to Sanjay Bhandari; secondly, it is a private limited ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (4) Any person whose claim or objection has been disallowed in whole or in part by an order under Sub-Section (1) may, within a period of one year from the date of such order, institute a suit to establish the right which he claims in respect of the property in dispute; but subject to the result of such suit, if any, the order shall be conclusive. If the language of Section 84 Cr.P.C. is read, the application has been filed by the accused himself and the language that by any person other than the proclaimed accused person precludes such an application per se. 20. Accordingly, considering the share holding in the company of M/s. OIS Advanced Technology Pvt. Ltd., the Trial Court found no merit in the plea of the petitioner that the company is a distinct corporate entity, separate from the individual and the property whereof cannot be attached. That being the situation, learned Court below was not inclined to set aside the order/ recall the order of attachment of properties of the company M/s OIS Advanced Technology Pvt. Ltd. Simultaneously, the Trial Court also found no grounds for releasing vehicles - Audi Q7 and BMW 7 Series in favour of M/s OIS Advanc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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