TMI Blog2001 (10) TMI 999X X X X Extracts X X X X X X X X Extracts X X X X ..... arkandeya, R.S. Suri, Vikas Pahwa, Mrs. Shally Bhasin Maheshwari, Rishi Maheshwari, S. Tabrez, R.K. Maheshwari, Bahar U. Barqi, Amit Dhingra, Mrs. M. Chaudhary, P.H. Parekh, Vipin Gogia, Mrs. Jaspreet Gogia, T.S. Arora, D.K. Garg, N.P. Midha, Manzoor Ali, Ms. Ritu Puri, V.R. Thangavelu, Rajiv Nanda, Mrs. Sushma Suri, Ashok Bhan, D.S. Mahra, Smt. Revathi Raghavan, Ms. Shweta Garg, Mrs. Sunitha Choudhary, Sunil Kr. Jain, V. Hansaria, Mahabir Singh, D.N. Goburdhan, Ms. Suruchi Aggarwal, Mrs. H. Wahi, Ms. Anu Sawhney, Smt. C. Markandeya, Anupam Tyagi, Sunil Kumar Bharti, Atul Kumar, Ranbir Yadav, Anil Hooda, V.G. Pragasam, Mrs. Jayshree Anand, G. Sivabalamurugan, Rajeev Sharma, S.S. Shinde, S.V. Desphande, Ranji Thomas, Javed M. Rao, J.R. Das, D.P. Mohanty, K.K. Mahalik, Pramod Swarup, Praveen Swarup, Ms. Pareena Swarup, Prashant Choudhary, A.S. Pundir, V. Singh, Prakash Kumar Singh, V.K. Shukla, Anil Shrivastav, T.C. Sharma, Ms. A. Subhashini, G. Prakash, Ms. Kamini Jaiswal, Dr. Nafis A. Siddiqui, B.B. Singh, V. Krishna Murthy, Ms. Vibha Dutta Makhija, Alok Bhachawat, Uma Nath Singh, Sanjay R. Hegde, S.M. Garg, for the appearing parties. JUDGMENT Banerjee, J. - This batch o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... will not be treated as a precedent and is passed only on the peculiar facts and circumstances of this case. The Writ Petition is disposed of accordingly." 2. This Court also on a petition under article 32 of the Constitution in Kuber Group of Companies [Writ Petition Nos. 72-75 of 2000 being the 2nd order as noticed hereinbefore] also passed a similar order to the following effect : " 1. If the petitioner is arrested in connection with any criminal case in his capacity as managing director/director of JVG Group of companies the arresting officer shall release him on bail on his executing a bond to the satisfaction of the Arresting Officer. 2. Such relief shall be made after getting an assurance from him that he will be present in the court concerned on the days when his case is posted. However, we make it clear that it is open to the petitioner to apply to the court concerned for exempting him from personal appearance on condition that a counsel on his behalf would be present on such posting dates and he would not dispute his identity as the particular accused in that case, and further that he would make himself available on any date when his presence is imperatively/n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titution. 4. Incidentally, several writ petitions have been filed invoking jurisdiction under article 32 of the Constitution of India by reason of supposed infraction of article 21 with several identical prayers - the main being grant of a writ of mandamus or any other appropriate writ in the nature of an order under section 438 of the Code of Criminal Procedure, directing that in the event the petitioner is arrested in connection with any criminal case, the Arresting Officer shall release him on bail on his execution of a bond to the satisfaction of the Arresting Officer. As regards the other prayers, we shall defer it presently since the cardinal issue relates to the first prayer. As noticed above, supposed infraction of article 21 was taken recourse to, to substantiate the invocation of article 32. 5. Needless to record that article 21 of the Constitution postulates that no person shall be deprived of his personal liberty except according to the procedure established by law. The expression personal liberty admittedly is of widest possible amplitude and cannot in any way whatsoever be, curbed or restricted without offending the constitutional mandate. The decision of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in a vacuum." (p. 1649) 9. Having however, discussed the outlying features of the grant of anticipatory bail and upon due consideration of the caution exercised by this Court in Gurbaksh Singh Sibbia s case ( supra ), let us advert to the factual scope presently before this Court. 10. The petitioners charged with offences under different provisions of law, are admittedly in custody: no complaint or grievance can be made against the issuance of charge-sheet by reason of the contextual facts of the writ petition. Facts relating to the charge-sheet as highlighted by both the parties during the course of hearing would be adverted to shortly, suffice however to record that the liability shall have to be adjudicated: The petitioner s culpability in the offence, if any, shall have to be deci- phered and if this be the foundation of launching of prosecution, the issue then as contended arises, viz., where is the scope of invoking article 21 of the Constitution - Has the article been incorporated in the Constitution to safeguard the offenders? These are few of the issues raised by the learned Additional Solicitor General, Mr. Rawal, appearing for the Union of India. The answer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owever is not very far to seek. It appears that the Petitioner No. 1 happens to be the managing director of Okara Agro Group of Companies. The records depict that the petitioner No. 2 Okara Agro Industries Ltd., commenced its business with effect from 7-5-1993 upon incorporation under the provisions of Companies Act, 1956. The records further depict that on 18-12-1997 the Securities and Exchange Board of India (SEBI) issued a notice in the daily newspaper stating that the Central Government has decided an appropriate regulatory framework for regulating the entities issuing instruments such as Agro bonds, plantation bonds etc. The notice also prohibited investment scheme including mutual funds from sponsoring schemes till the regulations are notified by the SEBI. It was provided further that till the regulations are notified, all collective schemes which were operating should continue with their operation till the regulations are notified. 14. On 25-3-1998, a FIR bearing No. 149 of 1998 was registered at P.S. Prasad Nagar under sections 420/406/409/120-B IPC against the company and its directors for accepting deposits from large number of people in different schemes and for fail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... months. The Crime Branch was also directed to file the list of 71 properties including the properties of sister concerns and the financial stability and the liquid assets of the company in the form of a report to the High Court within 6 weeks: Factual scope, thus, very candidly exposed the popular English saying - ingenious are the ways, where the genius works! 17. It is on these sets of facts that Mr. Tulsi, the learned senior Advocate appearing in support of some of these writ petitions contended that this long incarceration of the petitioners in jail cannot but be ascribed to be a situation which runs counter to the mandate of the Constitution under article 21. Mr. Tulsi contended that the petitioner No. 1 being the managing director of Okara Group of Companies is sought to be charged under section 420 Indian Penal Code with the aid of section 120B without there being any material to indicate that the petitioner had either the knowledge or the intention to assist the other accused in commission of the offence. In any event, it is submitted that the offence of conspiracy being in the nature of a continuing offence, its inclusion would be sufficient to establish the connection ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch other but cannot go hand in hand with each other and the methodology adopted in the garb of a petition under article 32 for infraction of article 21, cannot but be a handy work and ingenuity of the writ petitioners. The amount of money siphoned off from out of the deposits of the public in general by the petitioners does not permit the Court under article 32 or under any other provisions to grant any relief to the petitioners herein. 20. Mr. Rawal, the learned Additional Solicitor General, opened up a new vesta in the matter and submitted that in an application for anticipatory bail the gravity of the offences involved ought to be the prime consideration since thousands of investors have lost their lives savings, after being duped by the petitioners It is an economic murder of an entire community of people and, thus, has necessarily to be dealt with utmost severity. The two earlier judgments of this Court spoken above cannot be the guiding feature, since the same were pronounced in the facts and circumstances of each case: Secondly, in both the decisions this Court was cautious enough to record that the same would not be treated as a judicial precedent in any way whatso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of this Court: On the one hand, the constitutional mandate under article 21 and its broad and lofty ideals are involved therein and on the other, to quote Mr. Rawal s language, there is existing an economic genocide not only an issue interesting but its importance in the jurisprudence of the country cannot be lost sight of. 23. Before, however, we are caught on to the details of the white-collared crime and its effect on the society, we deem it expedient to advert to the more or less similar fact-situations of other six matters placed before this Bench! Re : Writ Petition No. 249 of 2000 24. In the earlier writ petition Nos. 245-246 of 2000, we thought it expedient to take recourse to a tabulated format and, thus, avoided a rather dull longish narration, but in the instant matter we do not think it proper to cut short the longish narration since we have already on record a version of the petitioner BB Sharma here in support of the writ petition as emphasised by Mr. Shanti Bhushan, the learned senior advocate in support of the petition and the other version available on record through the affidavit of one Raghuvir Singh and other notings available on record - the fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only he can look after the interest of investor by evolving a scheme of revival. The petitioner as a matter of fact, it has been contended, has to be shuttled from one place to another all over the country as presence of the petitioner suddenly becomes mandatory at every other place and on every date of hearing. It is this state of affairs which Mr. Shanti Bhushan appearing in support of the petitioner highlighted and contended that the same is unjust and violative of the fundamental rights under article 21 of the Constitution. 26. It has been contended in support of the petition that all these cases initiated against the petitioner are basically under section 420, read with section 120B of the Indian Penal Code and as such question is whether there are numerous cases of cheating or there is only one offence and one case and it is in this context reliance was placed upon sections 2, 9, 34, 36 and 40 of the Indian Penal Code and it was contended that an offence denotes a thing made punishable by the Indian Penal Code and that an act or omission would constitute an offence. It was emphasized that the singular includes plural and vice versa and the language of section 415 was t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ............................... Action taken:RC Registered Investigating Officer:Sh. H.C. Bisht, Dy. S.P., CBI SPE Dehradun Information Information has been received that during the year 1986, Sh. B.B. Rai, while posted and functioning as Branch Manager, Syndicate Bank, Bisavar, Distt. Mathura entered into a criminal conspiracy with some unknown persons with the object to cheat the Syndicate Bank. In pursuance of the said criminal conspiracy a Current Account No. 133 in the fake name of Sh. S.K. Verma was got opened at the said bank on 5-6-1986. Various clean over-drafts were allowed by Shri B.B. Rai, in this account on 7-6-1986, 14-6-1986, 17-6-1986 and 21-6-1986. Thus, there was a debit balance of Rs. 2,36,884 in this account on 8-7-1986 when a cheque pertaining to Sh. Madan Lal having a Saving Bank Account with Oriental Bank of Commerce, Shahdra, Delhi, amounting to Rs. 2,80,000 was purchased/discounted in the said bank at Bisavar and its proceeds were credited to the fake current account of Sh. S.K. Verma and on this basis Sh. B.B. Rai caused the closure of the said fake account. Actually in the absence of proper balances in the said account, the cheque mentioned abov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... set out hereinbelow : " 1. That I accompanied the Delhi Police team which went to Varanasi to arrest the petitioner alias B.B. Rai who was staying in Surya Hotel by changing his name as B.B. Badal . 2. That I have identified the Petitioner on 20-9-1998 in the said Hotel. I was accompanied by the officials of the team of Crime Branch - Delhi Police headed by Shri Shyam Singh, the then Asstt. Commissioner of Police, Economic Offences Wing, Crime Branch, Delhi. 4. That I am one of the thousands of gullible investors and have lost my hard earned retirement benefits to tune Rs. 3,20,000 (Rupees Three lacs twenty thousand only) in the Hoffland Group and a such am well conversant with the facts and circumstances of the case and hence competent to swear this affidavit. 5. That I have lodged FIR No. 340/1998 with Prasad Nagar Police Station and the trial in the said case is about to be completed in the Court of Tej Singh Kashyap, the learned Addl. Chief Metropolitan Magistrate, Tis Hazari Courts, Delhi." 29. The submissions of Mr. Shanti Bhushan pertaining to the charges in the matters relate to section 420 only - there seems, however, to be some amount of confusi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be meant to be that easily available to a person of such a heinous character; for the reasons noticed above neither any bail or in the nature of anticipatory bail can or could be granted to the petitioner herein. The provision of bail, it has been contended, has been engrafted in the statute book and specific provisions are available to the petitioner if he is otherwise entitled to and selection of this Court for projection of the so-called plight of the petitioner was utterly motivated, and invocation of article 21 is wholly wrong and in any event an offender of the nature of the petitioner herein cannot invoke such a plea as under article 21. The heinous nature of crime committed by the petitioner as it has been submitted does not warrant this Court to exercise the jurisdiction under article 32 by reason of the so-called infraction of article 21. The petitioner richly deserves the treatment meted out and no credence ought to be placed on the submission of Mr. Shanti Bhushan since his client does not deserve any sympathy from any quarters, far less the Apex Court of the country. It is at this juncture the other writ petitions as filed before this Court and included in this batch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceeding has also filed an affidavit but has recorded its inability to deal with the allegations in a manner effective since no details have been furnished. We do feel it expedient to record our concurrence therewith as more fully detailed hereinbelow in this judgment. 2. Writ Petition (Crl.) No. 270 of 2000 [ Sufyan Ahmad v. Union of India ] 34. The petitioner herein claims some amount of indulgence being an engineering student at the undergraduate level. The petitioner claims that being the real brother of Shri Jawad Ahmad Siddiqui, the Chairman of Al Falah Group of Companies, he was made a Dormant Director in one of the Companies of the Group and his name has been wrongly included in the list of offenders of any fraud perpetrated by the company. It has been the contention of the petitioner that he is in judicial custody since 29-1-2000 and as such invoked jurisdiction of this Court under article 32 for violation of his liberty as guaranteed under article 21 of the Constitution. A contra affidavit filed, however, depicts a contra picture and in terms of the affidavit of Deputy Commissioner of Police Headquarter, Delhi, there are more than 250 complaints alleging mis-ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d under article 21 of the Constitution. We, however, do not see any reason to allow the intervention application at this stage of the proceedings and as such we do not pass any order in Crl. M.P. No. 1223-25/2001 in W.P. (Crl.) No. 433-435 of 2000. 4. Writ Petition (Crl.) No. 421 of 2000 [ M.N. Badam v. Union of India ] 37. The petitioner herein has been a Director of Hoffland Finance Ltd. and it is stated that he was designated as one of the Directors purely looking after the formalities and to co-ordinate the official work with the Governmental agencies and as such he was not involved with the day to day affairs of the company s management. Significantly however, the petitioner retired as the Senior Superintendent of Police from the Intelligence Bureau on 30-4-1991 and is said to have been awarded various awards including the Indian Police Medal in August, 1980. It has been the specific case of the petitioner that at least 36 commendation certificates were awarded to the petitioner and the petitioner was awarded some medals also in the war of 1971 with Pakistan. The principal submission on this factual score in support of the petition has been after that serving the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... giving false affidavit. Thus, no case for bail is made out. The bail application, is, therefore, rejected. 40. Subsequently, a bail petition was moved before the High Court at Allahabad wherein by an order dated 14-8-1997 the learned Single Judge of the High Court was pleased to allow the bail application. In criminal Misc. Application No. 5717 of 1997, a learned judge of the Allahabad High Court allowed the application of the petitioner under section 482 and thereby released the latter on bail. While passing the order as noted lastly, the learned Judge observed: That an accused cannot be refused to be released on bail on the ground of requisition issued by other criminal court to produce the accused particularly when the date for producing the accused has already expired. 41. Significantly, an earlier writ petition filed before this Court in the name of Ashima Finance Investment Co. Ltd. v. State of U.P. wherein this court has been pleased to observe : "Having heard learned counsel, we are satisfied that the second petitioner, using as a shield the order dated 14th May, 1998, went into hiding to escape the processes of the law. His writ petition under Article 32 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epict that the petitioner has been granted bail in respect of cases pending at Chennai, Pune, Nagpur, Ahmedabad, Rajkot, Baroda, Hyderabad, Vishakapatnam and Jabalpur but the petitioner has not been able to avail all these bail orders and he is still in judicial custody in respect of similar FIR registered elsewhere on similar complaints of depositors. The petitioner further recites in the Application for Bail being Crl. M.P. No. 1807 of 2001 in Writ Petition (Crl.) No. 57 of 2001 the cases are more or less identically situated and that of Col. (Retd.) T.S. Bhan and V.K. Sharma as also the other two orders as noticed hereinbefore in detail in this judgment. In support of his contention as in the case of other writ petitioners that by reason of the continued detention, the petitioner s rights stand violated under article 21 and, hence, the petition under article 32. The counter-affidavits filed in the matter by the different States reveal that various proceedings are pending in various courts under sections 407, 409, 420 and 120B against the petitioner. The methodology adopted have been stated in detail but we do not feel it expedient to record the same at this juncture save and exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... zen when he approaches the court for perceived legal injury, provided he establishes that he has a right to remedy. . . ." 45. The Constitutional Bench decision of this Court in D.A.V. College, Bhatinda v. State of Punjab 1971 (2) SCC 261 has the following to state as regards the maintainability of the petition under article 32 of the Constitution. ". . . a petition under article 32 in which petitioners make out a prima facie case that their fundamental rights are either threatened or violated will be entertained by this Court and that it is not necessary for any person who considers himself to be aggrieved to wait till the actual threat has taken place. . . ." (p. 264) 46. Incidentally, the power of judicial review being implicit in written Constitution, question of there being any fetter for such review would not arise and specially in the 21st century there ought not to be thwarting of such a right nor even any hesitancy in that regard. Be it noticed herein that maintainability of the writ petition is an issue de hors the ultimate result in the petition - presently the justice-oriented approach and set-up a standard in accordance therewith ought to be the guidi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cle 21 more meaningful, the language of the article itself records an exception indicating thereby that a person may be deprived of his liberty in accordance with procedure established by law and it is in this sphere the courts will scrupulously observe as to whether the same stands differently and contra as regards the procedure established by law and in the event it is not so done, it would be a plain exercise of judicial power to grant redress to the petitioner. While there is no difficulty in appreciating the grievance and grant of relief in a given case but facts are too insufficient, however, to come to a conclusion as regards the infraction of article 21. Production warrants have been spoken of without any details whatsoever therefor the reason offered is that the petitioners, in fact, are not in the know of things being behind the prison bars and it starts pouring in from all parts of the country and in the factual backdrop, as noticed above it is a well-neigh impossibility to come to a finding as regards the infraction of article 21 and since in the factual matrix, no infraction can be identified and, thus, question of sustaining the plea of infringement of article 21 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .P. 1996 (3) SCC 422 and in " Common Cause" A Registered Society v. Union of India 1996 (4) SCC 33 and the direction issued to the High Courts to deal with the pending criminal proceedings regarding the offences involving corruption, misappropriation of public funds, cheating, etc., for disposal of the cases on priority basis does not in fact have any impact in the present context - though, however, we also deem it fit to issue similar directives in the matter under consideration irrespective of the factum of our finding on infraction of article 21 as also under section 438. 55. It is no doubt true that this Court earlier on two occasions in Writ Petition (Crl.) No. 256/99 and Writ Petition (Crl.) Nos. 72-75 of 2000, has granted the relief that in the event of the arrest of the petitioner in connection with any criminal case in his capacity as the Managing Director/Director of the group of companies, the arresting officer shall release him on bail on his executing a bond to the satisfaction of the arresting officer. This order obviously tantamounts to an order, invoking the provisions of section 438. The Court adopted the aforesaid procedure to find out a solution in the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... just, and not arbitrary, whimsical and fanciful. On account of liberal interpretation of the words life and liberty in article 21, the said article has now come to be invoked almost as a residuary right, even to an extent which the founding fathers of the Constitution never dreamt of. In a country like ours, if an accused is alleged to have deceived millions of countrymen, who have invested their entire life s saving in such fictitious and frivolous companies promoted by the accused and when thousands of cases are pending against an accused in different parts of the country, can an accused at all complain of infraction of article 21, on the ground that he is not being able to be released out of jail custody in view of different production warrants issued by different Courts ? Issuance of production warrants by the Court and the production of accused in Court in cases where he is involved is a procedure established by law and, consequently, the accused cannot be permitted to make a complaint of infraction of his rights under article 21. In our considered opinion, it would be a misplaced sympathy of the Court with such white-collared accused persons whose acts of commission and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n issue, question of the same being treated as a judicial precedent would not arise; in any event in the view as noticed hereinabove, the said orders as a matter of fact have lost their significance. 58. As regards the issue of a single-offence, we are afraid that the fact-situation of the matters under consideration would not permit to lend any credence to such a submission. Each individual deposit agreement shall have to be treated as separate and individual transaction brought about by the allurement of the financial companies; since the parties are different, the amount of deposit is different as also the period for which the deposit was effected. It has all the characteristics of independent transactions and we do not see any compelling reason to hold it otherwise. The plea as raised also cannot have our concurrence. 59. In almost all the petitions there has been a prayer for exemption from personal appearance - we are afraid that such a direction cannot be had from this Court since it is within the powers of the Magistrate and in his judicial discretion to dispense with the personal appearance of an accused and as such be it provided here that it would be open to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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