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TMI Blog2020 (5) TMI 429X X X X Extracts X X X X X X X X Extracts X X X X ..... .02.2018 bearing no. 03/117/2018-CL-I (NR) passed by the Central Government under section 212 of the Companies Act, 2013 directing the SFIO to investigate into the affairs of Rotomac Global Pvt. Ltd. till disposal of the bail application moved by the applicant on such terms and conditions as are deemed fit and proper in the circumstances of the case and in the interest of justice as well;" 2. The present matter has been nominated to this Bench by Hon'ble The Chief Justice vide order dated 30.4.2020 and the same was heard through video conferencing and judgment/order was reserved by this Court on 1.5.2020. 3. Heard Sri S.V. Raju, learned Senior Advocate assisted by Sri Rahul Agarwal and Sri Pranjal Krishna, learned counsels for the applicant and Sri Gyan Prakash, learned Assistant Solicitor General of India appearing on behalf of the respondent. 4. Pleadings between the parties have been exchanged through e-mail which are on record. 5. The brief facts of the case are that on 21.2.2018 vide letter no. 03/117/2018-CL-I (NR) passed by the Central Government under section 212 (1) (c) of the Companies Act, 2013 (hereinafter referred as 'the Companies Act) directing the Specia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on this ground alone. He further pleaded in para-32 of the affidavit filed in support of the bail application that the applicant reserves liberty to file another bail application (if the need so arise, at a later stage). It is further argued by learned counsel for the applicant that the SFIO was directed vide order dated 21.2.2018 to investigate into the affairs of RGPL pursuant to the registration of F.I.R. by the C.B.I. on 18.2.2018. It is stated that the allegation made in the F.I.R. dated 18.2.2018 and the investigation being conducted by the SFIO are pari-materia. On 22.2.2018, the applicant was arrested by the CBI in pursuance of the F.I.R. dated 18.2.2018 and after his arrest, the applicant was granted bail by the Lucknow Bench of this Court vide order dated 30.11.2018 passed in Bail Application No. 3492 of 2018 copy of which is annexed as annexure-4 to the present bail application. Being aggrieved by the said bail order, the C.B.I. filed an SLP before the Apex Court being S.L.P. (Crl.) No. 5931 of 2019 titled as "State through CBI/BS & FC/ v. Rahul Kothari". The Apex Court vide order dated 22.11.2019 refused to interfere with the judgment of the High Court and dismissed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t apply while dealing with an application for bail on medical grounds in view of the Proviso to Section 212 (6) (ii) of the Companies Act, 2013 as compared to Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the N.D.P.S.Act') as there is no such proviso under section 37 (1) (b) (11) in the N.D.P.S. Act and the applicant being a sick person, the bar does not apply on him in view of the proviso to section 212 (6) (ii) of the Companies Act, 2013, hence the applicant may be released on bail. Learned counsel for the applicant has relied upon para-22 of the judgment of the Apex Court in the case Gurucharan Singh vs. State (Delhi Administration), (1978) 1 SCC 118 and further relied on para-30 of the judgment of the Apex Court in the case of Sanjay Chandra vs. CBI, (2012) 1 SCC 40 relating to grant of bail. 9. Per contra, learned Assistant Solicitor General Sri Gyan Prakash appearing on behalf of the respondent opposed the prayer made in the present application and has vehemently argued that the applicant was arrested along with two other persons for commission of offence of fraud with Public Sector Banks involving total amount of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded him to judicial custody. He submitted that the plea of sickness which has been taken by the applicant due to coming in contact with Corona Virus (COVID-19) infected persons, does not appeal to reason as the applicant is not such a sick person as has been argued as he is only suffering from urinary infection and making emotional argument before this Court for taking care of old parents and family though he is involved in an offence of fraud in the affairs of Company of Rotomac group which are 11 in number. So far as the argument of learned counsel for the applicant that on the instructions of SFIO, the CBI has registered an F.I.R. against the applicant for the offence in question, is absolutely incorrect and denied, as the C.B.I. has investigated into the offences other than the Companies Act, 2013 which is a Special Act. The CBI has not investigated the fraudulent affairs of Rotomac Group which consists of RGPL and 10 other Companies and FIL as has been ordered by the Ministry of Corporate Affairs. He argued that SFIO is a statutory Investigation Office established under Section 211 of the Companies Act, 2013 and in terms of Section 212 of the Companies Act, 2013 it may conduct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsidered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the companies. The court thus observed that while granting bail, the court has to keep in mind the nature of accusations, nature of evidence in support thereof, the severity of punishment which conviction will ential, the larger interest of the public/State and other similar considerations. 10. Considered the rival submissions made by learned counsel for the parties and perused the record. 11. It transpires from the record that the applicant before approaching this Court has filed Writ Petition (Crl.) No. 125 of 2020 before the Apex Court and on 1st April, 2020, the Apex Court passed the following order:- "The above writ petitions are filed for grant of bail in favour of the petitioners in veiw of the threat posed to their lives in the light of COVID-19. Notice was issued on 27.03.2020. Today, we are informed that the High Court of Allahabad is taking up matters which are of urgent nature. As the Writ Petitions pertain to grant of bail, we are of the opinion that the petitioners should withdraw these writ petitions to approach the High Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmediately on bail by this Court. In this regard, the applicant's counsel has also drawn the attention of Court towards the order dated 23.3.2020 passed by the Apex Court Suo Motu in the aforesaid writ petition and also circular dated 18.3.2020 of this Court whereby the working of court below has been suspended. So far as the order dated 23.3.2020, it is evident that the Apex Court has directed each State/Union Territories to constitute a High Powered Committee to determine which class of prisoners can be released on parole or on interim bail for said period as may be thought appropriate. The Court has directed that the State/Union Territories could consider the release of the prisoners, who have been convicted or under trial for the offence which prescribed punishment upto 7 years or less, with or without fine and the prisoners, who have been convicted for lesser number of years than the maximum. The Apex Court further left it open for the High Powered Committee to determine the category of prisoners, who should be release as aforesaid, depending upon gravity and the nature of offence and other relevant factor thereto. In pursuance of the same, High Powered Committee had been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to the Judges/Magistrate & Panel Lawyers during lock down period by the District Administration. c) The Undertrial Review Committee contemplated by the Hon'ble Supreme Court in Re Inhuman Conditions in 1382 prisons, (2016) 3 SCC 700, shall meet every week and take such decisions in consultation with the concerned district authority as per the said judgment. d) Jail Superintendent shall be in continuous touch with concerned Secretary, District Legal Services Authority regarding disposal of interim bail applications moved by the under trial prisoners so that proper arrangements may be made." 15. From a perusal of the resolution of the said Committee, it is apparent that the Committee has resolved to release the under trial prisoners on interim bail, who are facing criminal cases in which the maximum sentence is of 7 years and presently confined in jails, for a period of eight weeks by the competent courts. Thus, the contention of Assistant Solicitor General Sri Gyan Prakash appearing on behalf of the respondent, who vehemently argued that the applicant is not entitled for bail/interim bail as per the order passed by the Apex Court Suo Motu in the aforesaid writ petition by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplicant, were involved in forging and fabricating letter of credit and the charge-sheet has been submitted against the applicant and his father Vikram Kothari in the said case. It appears that because of Bank of Baroda being aggrieved by some of the transactions of RGPL had individually made a complaint to C.B.I to investigate the case and the C.B.I. had registered a case on its complaint against the Company in question in which the applicant and his father was Managing Director, hence the said bail order cannot be of any help to the applicant in the present case as the investigation in the present case ordered by the Ministry of Corporate Affairs, by the Central Government in pursuance of the order passed on 21.2.2018 into the fraudulent affairs of RGPL and 10 others and F.I.L. by the SFIO is in public interest in view of Section 212 (1) (c) of the Companies Act, 2013 which is a Special Act. It appears from the grounds of arrest received by the applicant on the date of his arrest on 19.3.2020 that the applicant was found to be functioning as the Director of RGPL on 1.12.2004 and as a whole time Director on 16.8.2014 and under his direction he used Mercantile Trade for rotation of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... diate release on bail till such time that pandemic COVID-19 (Corona Virus) is curtailed to the applicant, namely, Rahul Kothari pertaining to the Order dated 21.02.2018 issued by respondent no. 2 in furtherance of Order No. 03/117/2018-CL-II (NR) dated 21.02.2018 and Order No. 7/117/2108/CL-II (NR) dated 22.08.2019 under sections 447 read with 36 (c) and 448 of the Companies Act, 2013, is hereby rejected. 18. However, it is directed that the I.G. (Prison) State of U.P. Lucknow is directed to ensure that the applicant is kept safely in District Jail, Kanpur Nagar where he is stated to be confined as on date taking all necessary precautions as has been issued by the State of U.P. in the context of Corona Virus (COVID-19) particularly, if any, also with respect to prisoners detained in jail throughout the State. 19. It is further directed that the respondent shall expedite the investigation of the present case and conclude the same at the earliest. 20. It is made clear that any observation made by this Court would not prejudice the right of the applicant for consideration of his regular bail application under section 439 Cr.P.C., if any, filed before this Court or the Court below, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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