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TMI Blog2024 (3) TMI 359X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 with Sections 447, 449, 96 read with Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gation 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 Division Bench of this Court in P.V. Narsimha Rao v. State (CB ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inst 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 the relief so granted by this Court. He submits that the material allegat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, 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 offence of which he is accused, or suspected, of the commission of which he is suspected, and (c) that such person shall not directly or indirectly make ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation 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 hearing of the application and passing of final order by the Court, if on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice. (2) When the High Court or the Court of Session makes a d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 bail under this Chapter be arrested and commit him to custody." 18. 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 ' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 especially true when the statutory provision which falls for consideration is designed to secure a valuable right like the right to personal freedom and involves the application of a presumption as salutary and deep grained in our criminal jurisprudence as the presumption of innocence. Though the right to apply for anticipatory bail was conferred for the first time by Section 438 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ub-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 of the freedom of the individual and the presumption of innocence. It has to be borne in mind that anticipatory bail is sought when there is a mere apprehension of arrest on the accusation that the applicant has committed a non-bailable offence. A person who has yet to lose his freedom by being arrested asks for freedom in the event of arrest. That is the stage at which it is im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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', for which reason it is not enough for the applicant to show that he has some sort of a vague apprehension that some one is going to make an accusation against him, in pursuance of which he may be arrested. The grounds on which the belief of the applicant is based that he may be arrested for a non-bailable offence, must be capable of being examined by the court objectively because it is then alone that the court can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 filed a charge-sheet, would not by itself, in our opinion, prevent the courts concerned from granting anticipatory bail in appropriate cases. The gravity of the offence is an important factor to be taken into consideration while granting such anticipatory bail so also the need for custodial interrogation, but these are only factors that must be borne in mind by the courts concerned while entertaining a petition for grant of anticipatory bail and the fact of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e ("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. Thus the learned Public Prosecutor, argues that the present application would not be maintainable in view of the fact that the Court has itself not chosen to issue a warrant of arrest; instead the learned Special Judge has issued a process in the form of summons to secure the appearance of the petitioner. Hence it cannot be called by any stretch of imagination that there is an apprehension of arrest. While putting forward the said contention the learned Public Prosecutor is oblivious of the fact that a charge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 bench of this court, as far back as in November, 1996 by its judgment reported as P.V. Narsimha Rao v. State (CBI), 1997 SCC OnLine Del 19 had answered a reference on precisely the same question of law contrary to what is being canvassed by the petitioner. Pertinent to note that in that case also the petitioner had come up to this Court for grant of anticipatory bail in the wake of summons issued by court of Magistrate against him. The division bench, answering the reference made by a learned single judge had, inter alia, observed that a person against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 contrary to the above referred judgments of the Supreme Court and of this Court, which have clearly held that the power under Section 438 of the Cr.P.C. would be available even where the charge-sheet has been filed or cognizance on a complaint has been taken by the Magistrate. 27. 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 Gurba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the present to note that it is not the CBI which is seeking their custody, but the appellants apprehend that they may be remanded to custody by the Trial Court and this is why they seek protection. We must keep this in mind while deciding the fate of these appeals. 11. In the case of the prime accused, namely Shri Mahdoom Bava, an additional argument advanced by the learned Additional Solicitor General is that he was involved in eleven other cases. But the tabulation of those eleven cases would show that seven out of those eleven cases are complaints under Section 138 of the Negotiable I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cused, if proved at the trial, must be met with requisite punishment. However, that punishment must follow conviction, and the severity of the allegations, by itself cannot be a justification for pre-trial incarceration. 36. It is, therefore, ordered that in case of arrest, the Applicant(s) be released on bail in CC No. 272/2022 titled Serious Fraud Investigation Office v. Dura Line India Pvt. Ltd. (DIPL) & Ors. pending before the learned Trial Court, subject to furnishing a personal bond in the sum of Rs. 50,000/- each, with one local surety each of the like amount to the satisfaction of the learned Trial Court, and further subject to the following conditions: i. The Applicant(s) shall appear in the trial unless otherwise exempted from personal appearance by the learned Trial Court. ii. The Applicant(s) shall not contact, nor visit, nor offer any inducement, threat or promise to any of the prosecution witnesses or other persons acquainted with the facts of case. The Applicant(s) shall not tamper with evidence nor otherwise indulge in any act or omission that is unlawful or that would prejudice the proceedings in the pending trial; iii. In addition to the above conditions, i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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