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TMI Blog2024 (3) TMI 411X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt material, framed it s opinion that investigation into the affairs of the several companies i.e Infrastructure Leasing and Financial Services Limited (IL F.S) and it s subsidiary companies is necessary to be conducted by SFIO and accordingly passed an order bearing Order No. 03/679/2018/CL-II (WR) dated 30th September, 2018 in this regard in exercise of it s powers under Section 212 (1) (c) of the Companies Act, 2013. 4. Pursuant to an order of the Ministry, a team was appointed for carrying out the aforesaid investigation. During investigation, it revealed that IL FS Financial Services Ltd (hereinafter referred to as IFIN ) is one of the subsidiary companies of the IL FS Group, whose investigation has also been ordered by the Ministry of Corporate Affairs. Having conducted the investigation, a report dated 28th May, 2019 along with all it s annexures came to be filed. 5. As per Section 212 (15) of the Act of 2013, investigation report came to be filed in the Special Court for framing charges against all the accused. 6. The applicant came to be arrested on 1st April, 2019 under Section 212 (8) of the Act of 2013. The Special Judge rejected his application for bail vide an order d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dictional Court, after more than four years and six months, more precisely on 28th November, 2023. The SFIO complaint was filed on 30th May, 2019. The record reveals that sixty six witnesses are enlisted in the complaint. It is a matter of record that one of the accused Ramesh Bawa was granted bail on medical ground by this Court. Accused Ramchand and Saha appears to have been arrested by the Enforcement Directorate based on SFIO s predicate offence and they have also been released on bail. 12. Mr. Venegavkar, learned Special Public Prosecutor while strongly objecting release of the applicant on bail vehemently urged to reject the application by contending that the accused has no exclusive right to seek his release on bail even after considering the judgment in the case of Union of India Vs. K.A. Najeeb (2021) 3 Supreme Court Cases 713 looking to the gravity, seriousness and enormity of the offence. He would argue that an amount of Ninety Four Crores is involved in the fraud, comprising the entire IL FS group. According to Mr. Venegavkar, applicant is instrumental, in the sense, had control and key person. He would argue that application for bail, if considered on merits would indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 26th September, 2023. Relevant part is extracted below; He has serious cardiac illness with possibility of sudden cardiac death as Holter s/o III-sustained VT. As a treatment of this disease he is on appropriate medical therapy but he also needs AICD device implantation. Cardiac arrhythmias are unpredictable and serious complications seen in heart disease, need close monitoring. The device therapy is to be done after a gap of 6-8 weeks from the date of angioplasty as per scientific guidelines. Right now he is having symptomatic orthostatic hypotension which is an additional crippling illness. He is being monitored closely and appropriate medical steps are being taken . 15. Learned Senior Advocate has placed reliance on the following decisions, however, it is needless to advert to each of the decision since the ratio decidendi in most of the case laws is similar. (1) Jainam Rathod Vs. State of Haryana and another Criminal Appeal No. 640 of 2022; (2) Sujay U. Desai Vs. Serious Fraud Investigation Office Criminal Appeal No. 1023 of 2022. (3) Bindu Rana Vs. SFIO Bail Application No. 3643 of 2022 Crl. M. (Bail) 1488 of 2022. (4) Union of India Vs. K.A. Najeeb (supra) (5) Sujit Tiwari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithin a reasonable period, this Court must be mindful of the need to protect the personal liberty of the accused in the face of a delay in the conclusion of the trial. We are inclined to grant bail on the above ground having regard to the fact that the appellant has been in custody since 28 August 2019. In Nitin Johari (supra), this Court has held: 24. At this juncture, it must be noted that even as per Section 212(7) of the Companies Act, the limitation under Section 212 (6) with respect to grant of bail is in addition to those already provided in CrPC. Thus, it is necessary to advert to the principles governing the grant of bail under Section 439 of CrPC. Specifically, heed must be paid to the stringent view taken by this Court towards grant of bail with respect of economic offences. While the provisions of Section 212 (6) of the Companies Act 2013 must be borne in mind, equally, it is necessary to protect the constitutional right to an expeditious trial in a situation where a large number of accused implicated in a criminal trial would necessarily result in a delay in its conclusion. The role of the appellant must be distinguished from the role of the main accused. 9. For the ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onomic offences. There was no reason why similarly placed accused were not arrested and, therefore granted bail to the applicant. Paragraphs 47 and 56 to 62 are reproduced below; 47. From the perusal of the complaint, it is apparent that even in relation to the charges which are alleged against the present applicant, there are various other accused persons who have been named as co-accused. The role assigned to them at this stage is no different than the Applicant. However, surprisingly the SFIO did not feel any need or ground to arrest those co-accused persons and proceeded to file the complaint praying the learned Special Court to take cognizance of the offences. 56. Nothing has been pointed out to show that the arrest and further custody of the applicant would substantiate the process of investigation more so when the main accused person and other co accused having similar and in some cases graver role have not been arrested and the applicant has already joined the investigation. 57. It is also not alleged that the applicant has been found to be tampering with the evidence. The evidence relied upon has already been made part of the complaint. 58. From the very nature of investig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... carceration and the unlikelihood of the trial being completed anytime in the near future. The reasons assigned by the High Court are apparently traceable back to Article 21 of our Constitution, of course without addressing the statutory embargo created by Section 43-D (5) of UAPA. 11. The High Court s view draws support from a batch of decisions of this Court, including in Shaheen Welfare Association (1996) 2 SCC 616, laying down that gross delay in disposal of such cases would justify the invocation of Article 21 of the Constitution and consequential necessity to release the undertrial on bail. It would be useful to quote the following observations from the cited case: (SCC p. 622, para 10) 10. Bearing in mind the nature of the crime and the need to protect the society and the nation, TADA has prescribed in Section 20 (8) stringent provisions for granting bail. Such stringent provisions can be justified looking to the nature of the crime, as was held in Kartar Singh case [(1994) 3 SCC 569), on the presumption that the trial of the accused will take place without undue delay. No one can justify gross delay in disposal of cases when undertrials perforce remain in jail, giving rise t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed any time in the near future. Indeed, the reasons assigned by the High Court were traceable back to Article 21 of the Constitution. 23. The Supreme Court in case of Union of India Vs. K.A. Najeeb (supra), observed that the High Court s view drew support from batch of decisions of the Supreme Court including the case of Shaheen Welfare Association Vs. Union of India 1996 (2) Supreme Court Cases 616 laying down that gross delay in disposal of such cases would justify the invocation of Article 21 of the Constitution and consequential necessity to release the under trial on bail. 24. The ratio laid down hereinabove by various pronouncements would attract to the case in hand and can be made squarely applicable. The respondent No. 1 has not disputed long incarceration as well as serious health condition of the applicant who is now 63 years old. Rather, facts of the case in hand are more egregious than the instances referred in the case of Jainam Rathod and Sujay U. Desai (supra). 25. At the cost of repetition, it is borne out from the record that the applicant has been suffering from serious cardio Vascular diseases and serious co-morbidities including Type II Diabetes, Polycythemia, d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reme Court in case of Satyendra Jain Vs. Directorate of Enforcement (supra), Supreme Court granted bail to the accused on medical ground. It was observed that the citizen has a right to take treatment of his choice, at his own expenses, in a private hospital. 29. 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. 30. 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 quest ..... X X X X Extracts X X X X X X X X Extracts X X X X
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