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2023 (2) TMI 1166 - DELHI HIGH COURTSeeking grant of bail - flight risk - cash sales - fictitious sale of food grain - creation of accommodation/adjustment accounting entries, apart from misusing cheque discounting facilities - HELD THAT:- It is however the admitted position, that the petitioner was never arrested in the course of the 06-year long investigation; that he was remanded to judicial custody by the learned Special Judge only at the stage after cognizance was taken and the petitioner appeared before the court against summons issued, purportedly in view of the provisions of section 212 of the Companies Act; in particular considering that section 212(6) bars the grant of bail unless the twin conditions contained therein are satisfied. As held by this court in Komal Chadha [2022 (12) TMI 982 - DELHI HIGH COURT] however, other things apart, in mechanically remanding the petitioner to judicial custody, the learned Special Judge misdirected himself in applying section 212(6) to the situation in as much as that provision relates to a stage where the court is considering grant or refusal of bail to a person who is in custody - Section 212(6) would not apply to a case where the I.O. has never sought police custody of the accused; and has not even asked that the accused be remanded to judicial custody after cognizance is taken. The decision whether to remand the petitioner to judicial custody upon his appearance, vests with the Special Judge; and that should have been considered and decided by the Special Judge in accordance with well-settled and restrictive principles as to pre-trial detention of an accused. In the present case, as also in the case of Komal Chadha [2022 (12) TMI 982 - DELHI HIGH COURT], the order remanding the petitioner to judicial custody discloses no application of mind as to why, on what basis, for what reason, or for what purpose the learned Special Judge formed the view that the petitioner‟s judicial custody had become necessary, after the petitioner had been at liberty for the past 06 years. There was no allegation of the petitioner having either intimidated any witnesses; or having tampered with evidence; or having otherwise interfered in the course of investigation. As for the question whether the petitioner is a flight risk, it is noted that no specific risk has been cited or shown to exist; and the perceived theoretical risk which exists in the case of every accused on bail, can be addressed by imposing appropriate conditions on grant of bail. The court is persuaded to allow the present petition and admit the petitioner to regular bail, subject to the conditions imposed - petition allowed.
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