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TMI Blog2025 (4) TMI 640X X X X Extracts X X X X X X X X Extracts X X X X ..... 23) BELA M. TRIVEDI And PRASANNA B. VARALE, JJ. JUDGMENT BELA M. TRIVEDI, J. 1. Leave granted. 2. This batch of sixteen Appeals being interconnected with each other and arising out of the proceedings being CIS No. COMA/5/2019 pending before the Special Judge, Gurugram, are being decided by this common judgment. 3. In these cases, there is a brazen attempt made on the part of the respondents-accused to stall the criminal proceedings initiated against them, in respect of the serious economic offences allegedly committed by them, by not respecting the summons/warrants issued by the Special Court from time to time and thereby causing obstruction in the administration of justice. A few basic common facts necessary for deciding the present appeals may be stated as under: - (i) The Appellant i.e. Serious Fraud Investigation Office (SFIO) is a statutory body constituted and established under Section 211 of the Companies Act of 2013. The Ministry of Corporate Affairs (MCA) vide the order dated 20.06.2018 in exercise of its powers conferred under Section 212(1)(c) of the Companies Act, 2013 and Section 43(2) and (3)(c)(i) of Limited Liability Partnership Act, 2008 directed the SFI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore loans could not have been given to such companies by the ACCSL. It is further alleged that total amount of Rs.4120 crores were the outstanding balance as on 31.03.2018 against such illegal loans given by the ACCSL. (v) It is also further alleged by the SFIO that the illegal loans obtained from ACCSL by the Companies belonging to Adarsh Group and Ridhi Sidhi Group were on the basis of forged financial/loan documents submitted/signed by the directors of the Companies belonging to the Adarsh Group. The said directors had siphoned off the said funds/loans obtained from the ACCSL in connivance of the other accused. The directors had signed off balance sheets of the companies showing the said funds obtained ACCSL as "loans taken from a financial institution". (vi) The Special Court vide the detailed Order dated 03.06.2019 took the cognizance of all the offences alleged against the accused including the respondents, under the Companies Act and under the IPC, and summoned all the accused including the respondents herein by issuing bailable warrants in the sum of Rs.10,000/- with one surety in the like amount with the direction to appear on 30.07.2019. (vii) There being som ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 15318/20 23) 5 BW 03.06.2019 30.07.2019 04.09.2019 03.10.2019 19.10.2019 [Annexure P13, Page 629 of the concerned SLP] 8 NBW 02.11.2019 22.11,2019 17.12.2019 31.01.2019 24.09.2020 15.01.2021 19.02.2021 04.08.2021 08.09.2021 [Annexure P13, Page 629 of the concerned SLP] Pro. Order (25.03.2022) [Annexure P13, Page 629 of the concerned SLP] Denied by Special Court (11.05.2022) [Annexure P15, Page 651 of concerned SLP] Granted by High Court (29.03.2023) CRM-M- 25052/2022 (IMPUGNED) S. 447 [Annexure P15, Page 651 of the concerned SLP] 4 SFIO Vs. Shinder Pal Singh & Gurbir Singh, SLP(Crl.) 15322/20 23 2 BW 03.06.2019 30.07.2019 [Annexure P14, Page 653 of the concerned SLP for Shinder Pal Singh] [Annexure P14, Page 654 of the concerned SLP for Gurbir Singh Sandhu] 11 NBW 13.09.2019 03.10.2019 19.10.2019 22.11.2019 17.12.2019 31.01.2020 24.09.2020 15.01.2021 19.02.2021 04.08.2021 08.09.2021 [Annexure P14, Page 653 of the concerned SLP for Shinder Pal Singh] [Annexure P14, Page 654 of the concerned SLP for Gurbir Singh Sandhu] Pro.Order (25.03.2022) [Annexure P14, Page 653 of the concerned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y High Court (29.03.2023) CRM-M- 17096/2022 (IMPUGNED) S. 447 [Annexure P7, Page 502 of the concerned SLP] 9 SFIO vs. Naveen Choudha ry, SLP (Crl.) No. 13965/20 23 2 BW 03.06.2019 30.07.2019 [Annexure P17, Page 709 of Main SLP i.e., Aditya Sarda] 12 NBW 04.09.2019 03.10.2019 19.10.2019 22.11.2019 17.12.2019 31.01.2020 24.09.2020 15.01.2021 19.02.2021 04.08.2021 08.09.2021 [Annexure P17, Page 709 of Main SLP i.e., Aditya Sarda] Pro.Order (25.03.2022) [Annexure P17, Page 710 of Main SLP i.e., Aditya Sarda] Denied by Special Court (21.12.2019) [Annexure P6 of the concerned SLP] Granted by High Court (29.03.2023) CRM-M- 25508/2022 (IMPUGNED) S. 447 (@ Page 497 Annexure P6 of the concerned SLP) 10 SFIO vs. Manish Chaudha ry, SLP (Crl.) No. 13975/20 23 2 BW 03.06.2019 30.07.2019 [Annexure P17, Page 691 of Main SLP i.e., Aditya Sarda] 11 NBW 04.09.2019 03.10.2019 19.10.2019 22.11.2019 17.12.2019 31.01.2020 24.09.2020 15.01.2021 19.02.2021 04.08.2021 08.09.2021 [Annexure P17, Page 691 of Main SLP i.e., Aditya Sarda] Pro.Order (25.03.2022) [Annexure P17, Page 692 of Main SLP i.e., Aditya ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 22.11.2019 17.12.2019 31.01.2020 24.09.2020 15.01.2021 19.02.2021 04.08.2021 08.09.2021 [Annexure P17, Page 697 of Main SLP i.e., Aditya Sarda] Naveen 2 BW 03.06.2019 30.07.2019 [Annexure P17, Page 701 of Main SLP i.e., Aditya Sarda] Naveen 11 BW 04.09.2019 03.10.2019 19.10.2019 22.11.2019 17.12.2019 31.01.2020 24.09.2020 15.01.2021 19.02.2021 04.08.2021 08.09.2021 [Annexure P17, Page 701 of Main SLP i.e., Aditya Sarda] Akshat Pro.Order (25.03.2022) [Annexure P17, Page 698 of Main SLP i.e., Aditya Sarda] Naveen Pro.Order (25.03.2022) [Annexure P17 Page 701-702 of Main SLP i.e., Aditya Sarda] Akshat Singh withdrew his Ist Anticipatory Bail Application on 15.12.2021 [Annexure P10 of the concerned SLP] Second Anticipatory Bail Application was allowed to Akshat Singh by Special Court (20.07.2022) [Annexure P19 of the concerned SLP] High Court rejected Petition for Cancellation of Bail granted to Akshat Singh (20.03.2023) CRM-M- 40944/2022 (IMPUGNED) Anticipatory Bail granted to Naveen Kumar by Special Court (19.07.2022) High Court rejected Petition for Cancellation of Bail granted to Navee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the Special Court on 23.09.2019, and was granted by the High Court vide the order dated 29.03.2023, which is impugned herein. (iii) In case of the respondent Nazima Khan (Accused No.152), the non-bailable warrants issued against him were received back unexecuted with the report that the accused was not available at home. His anticipatory bail application was dismissed by the Special Court on 11.05.2022 and he was granted anticipatory bail by the High Court vide the order dated 29.03.2023, which is impugned herein. (iv) In case of the respondent Shinder Pal Singh (Accused No.137), the non-bailable warrants issued against him were received back unexecuted with the report that he had left the house at given address. His anticipatory bail was dismissed by the Special Court on 13.09.2019 and he was granted anticipatory bail by the High Court vide the order dated 29.03.2023, which is impugned herein. (v) In case of the respondent Deepak Shrimali (Accused No.129), the non-bailable warrants issued against him were received back SLP (CRL.) No.13956 of 2023 Page 21 of 55 unexecuted with the report that as per his mother the accused was not available at home. His anticipatory bail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted with the report that as per the Chowkidar in his house, he was not at home. His anticipatory bail was rejected by the Special Court vide the order dated 11.05.2022 and he was granted anticipatory bail by the High Court vide the order dated 29.03.2023, which is impugned herein. (xii) In case of the respondent Saurabh Tak (Accused No. 172), the non-bailable warrants issued against him were received back unexecuted with the report that he had left the house at the given address. His anticipatory bail was rejected by the Special Court vide the order dated 20.08.2020 and he was granted anticipatory bail by the High Court vide the order dated 29.03.2023, which is impugned herein. (xiii) In case of the respondent Jinender Vyas (Accused No. 118), the non-bailable warrants issued against him were received back unexecuted with the report that he had left the house at the given address. His anticipatory bail was rejected by the Special Court vide the order dated 24.09.2020 and he was granted anticipatory bail by the High Court vide the order dated 29.03.2023, which is impugned herein. (xiv) In case of the respondent Akshat Singh (Accused No. 136), the non-bailable warrants issued ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in cases of respondent Akshat Singh and respondent Naveen Kumar (SLP Crl. Nos.13973/2023 and 13974/2023), the Special Court itself had granted the anticipatory bail to them, and that the petitions filed by the SFIO against the said orders were dismissed by the High Court. Under the circumstances, we do not propose to entertain the Appeals arising out of SLP (Crl.) Nos.13973-13974/2023 and SLP (Crl.) No.15326/2023, and the same are dismissed. 8. APPEALS IN OTHER CASES: - Heard the learned Advocates Mr. Padmesh Mishra for the Appellant - SFIO, and the learned Senior Advocates Mr. Siddharth Dave, Mr. Basant, Mr. Nagamuthu, Ms. Meenakshi Arora, Mr. Gautam Awasthi, Mr. Rudreshwar Singh, Mr. Devesh Bhatia, Mr. Abhishek Singh, Mr. Vivek Soni, Mr. Arjun Sharma and Mr. Aniruddh Joshi, for the respondents in these appeals. 9. The facts that have emerged from the record, clearly demonstrate the respondents in this set of appeals had avoided the execution of the non-bailable warrants even after their anticipatory bail applications were rejected in 2019-2020-2022 by the Special Court. Though it was contended by the learned Advocates appearing for the respondents that the respondents were not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ............. (6) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), offence covered under section 447 of this Act shall be cognizable and no person accused of any offence under those sections shall be released on bail or on his own bond unless- (i) the Public Prosecutor has been given an opportunity to oppose the application for such release; and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail: Provided that a person, who, is under the age of sixteen years or is a woman or is sick or infirm, may be released on bail, if the Special Court so directs: Provided further that the Special Court shall not take cognizance of any offence referred to this subsection except upon a complaint in writing made by- (i) the Director, Serious Fraud Investigation Office; or (ii) any officer of the Central Government authorised, by a general or special order in writing in this behalf by that Government. (7) to (17)..............................................." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n requiring him to appear at a specified place and at a specified time not less than thirty days from the date of publishing such proclamation. (2) to (5)......................................." 14. Section 204 of Cr.P.C., 1973 pertains to the "Issue of process", relevant part thereof reads as under : - "204. Issue of process. - (1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be- (a) a summons-case, he shall issue his summons for the attendance of the accused, or (b) a warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction. (2) to (5)........................................" 15. Section 438 of Cr.P.C., 1973 pertains to the "Direction for grant of bail to person apprehending arrest", relevant part thereof reads as under: - "438. Direction for grant of bail to person apprehending arrest. - (1) When any person has reason to believe that he may be arrested on an accusation of having c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Court does not have the jurisdiction, to appear before the Court having jurisdiction). It is well settled proposition of law that in complaint cases, when a warrant or summons issued by the Court for bringing the accused before it, is not executed, and if the Court is satisfied that the person will not voluntarily appear in the Court; or the police authorities are unable to find the person to serve him with a summons; or when it is considered that the person could harm someone if not placed into custody immediately, the concerned Court could issue nonbailable warrant to bring him to the Court. 17. A very pertinent discussion and observations made by a three Judge Bench of this Court in the case of Inder Mohan Goswami and Another vs. State of Uttaranchal and Others, (2007) 12 SCC 1 in this regard may be reproduced hereinbelow: - "49. In State of U.P. v. Poosu [(1976) 3 SCC 1: 1976 SCC (Cri) 368] at SCC p. 5, para 13 the Court observed: "13. ... Whether in the circumstances of the case, the attendance of the accusedrespondent can be best secured by issuing a bailable warrant or non-bailable warrant, is a matter which rests entirely in the discretion of the Court. Although, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecide whether it is a fit case for grant of anticipatory bail.... 70. ..................................... 71. Article 21 of the Constitution of India states that no person shall be deprived of his life or personal liberty except according to procedure prescribed by law. However, the power conferred by Article 21 of the Constitution of India is not unfettered and is qualified by the later part of the Article i.e. "...except according to a procedure prescribed by law". In State of M.P. v. Ram KishnaBalothia [State of M.P. v. Ram Kishna Balothia, (1995) 3 SCC 221: 1995 SCC (Cri) 439], the Supreme Court held that the right of anticipatory bail is not a part of Article 21 of the Constitution of India and held as under: (SCC p. 226, para 7) "7. ... We find it difficult to accept the contention that Section 438 of the Code of Criminal Procedure is an integral part of Article 21. In the first place, there was no provision similar to Section 438 in the old Criminal Procedure Code. The Law Commission in its 41st Report recommended introduction of a provision for grant of anticipatory bail. It observed: 'We agree that this would be a useful advantage. Though we must add that it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sh Babu v. P.T. Manokaran [D.K. Ganesh Babu v. P.T. Manokaran, (2007) 4 SCC 434: (2007) 2 SCC (Cri) 345], State of Maharashtra v. Mohd. Sajid Husain Mohd. S. Husain [State of Maharashtra v. Mohd. Sajid Husain Mohd. S. Husain, (2008) 1 SCC 213: (2008) 1 SCC (Cri) 176] and Union of India v. Padam Narain Aggarwal [Union of India v. Padam Narain Aggarwal, (2008) 13 SCC 305: (2009) 1 SCC (Cri) 1].)" Economic offences 78. Power under Section 438 CrPC being an extraordinary remedy, has to be exercised sparingly; more so, in cases of economic offences. Economic offences stand as a different class as they affect the economic fabric of the society. In Directorate of Enforcement v. Ashok Kumar Jain [Directorate of Enforcement v. Ashok Kumar Jain, (1998) 2 SCC 105: 1998 SCC (Cri) 510], it was held that in economic offences, the accused is not entitled to anticipatory bail." 19. In Y.S. Jagan Mohan Reddy vs. Central Bureau of Investigation, (2013) 7 SCC 439 it was observed as under: - "34. Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offences having deep-rooted conspiracies and involving huge loss of pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... larifying that arrest should be the last option and it should be restricted to cases where arrest is imperative in the facts and circumstances of a case, the consistent view is that the grant of anticipatory bail shall be restricted to exceptional circumstances. In other words, the position is that the power to grant anticipatory bail under Section 438, Cr. PC is an exceptional power and should be exercised only in exceptional cases and not as a matter of course. Its object is to ensure that a person should not be harassed or humiliated in order to satisfy the grudge or personal vendetta of the complainant. (See the decision of this Court in HDFC Bank Ltd. v. J.J.Mannan & Anr.4). 10. When a Court grants anticipatory bail what it actually does is only to make an order that in the event of arrest, the arrestee shall be released on bail, subject to the terms and conditions. Taking note of the fact the said power is to be exercised in exceptional circumstances and that it may cause some hinderance to the normal flow of investigation method when called upon to exercise the power under Section 438, Cr.PC, courts must keep reminded of the position that law aides only the abiding and ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticipatory bail to the accused though the proceedings under Section 82/83 CrPC were initiated, observed as under: - "10....................................... 10.1..................................... 10.2. Despite the above observations on merits and despite the fact that it was brought to the notice of the High Court that Respondent 2- accused is absconding and even the proceedings under Sections 82/83CrPC have been initiated as far back as on 10-1-2019, the High Court has just ignored the aforesaid relevant aspects and has granted anticipatory bail to Respondent 2-accused by observing that the nature of accusation is arising out of a business transaction. The specific allegations of cheating, etc. which came to be considered by the learned Additional Sessions Judge has not at all been considered by the High Court. Even the High Court has just ignored the factum of initiation of proceedings under Sections 82/83CrPC by simply observing that "be that as it may". The aforesaid relevant aspect on grant of anticipatory bail ought not to have been ignored by the High Court and ought to have been considered by the High Court very seriously and not casually. 10.3.............. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... released on bail or on his bond, unless twin conditions mentioned therein are satisfied. The twin conditions are: - (i) that a Public Prosecutor should be given an opportunity to oppose the application for such release; and (ii) where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. These twin conditions are mandatory in nature. A three Judge Bench in case of Vijay Madanlal Choudhary and Others vs. Union of India and Others, (2023) 12 SCC 1 while examining the validity of similar conditions contained in Section 45 of the PMLA Act, had held that the restrictive conditions of bail are mandatory in nature. They are applicable even in the anticipatory bail proceedings. 25. In a recent case in Union of India through Assistant Director vs. Kanhaiya Prasad, 2025 SCC Online SC 306 it has been observed by this Court that cryptic orders granting bail without adverting to the facts or the consideration of such restrictive conditions with regard to the bail are perverse and liable to be set aside. 26. Coming back to the fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unsels for the Respondents to rely upon the decision in case of Tarsem Lal vs. Directorate of Enforcement Jalandhar Zonal Office, (2024) 7 SCC 61 to submit that if the respondents were not arrested by the SFIO during the course of investigation till the filing of the complaint, the Special Court while taking cognizance of the alleged offences should have issued a summons only to the respondents-accused and not a warrant. The said submission is bereft of merits. As discussed earlier, as per Section 204, Cr.P.C. in a complaint case, which appears to be a warrant case, the Court taking cognizance of the offence, has the discretion to issue warrant or summons as it thinks fit, for causing the accused to be brought or to appear before it. As held by three Judge Bench of this Court in case of Inder Mohan Goswami and Another (supra), the Court is empowered to issue even a nonbailable warrant to bring a person to the Court, when it is reasonable for the Court to believe that the person will not voluntarily appear in the Court or the police authorities are unable to find the person to serve him with a summons. There cannot be a strait jacket formula, as sought to be submitted by the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X
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