TMI Blog2019 (1) TMI 388X X X X Extracts X X X X X X X X Extracts X X X X ..... rdingly not considered inter alia that the provisions of Sections 212(3) and 212(8) of the Companies Act operate in two different fields and the power of investigation and power of arrest are independent of each other; that the stipulation as to time-frame for investigation may not necessarily apply to the time period for which a person may be placed under arrest; that it is the prerogative of the SFIO to submit even an interim report at any stage of the investigation; that the petitioner in the present case is in Judicial Custody and not SFIO custody; that the Companies (Amendment) Act, 2015 making the offence of fraud under Section 447 of the Companies Act a cognizable offence may have retrospective application. It is deemed appropriat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent no. 1 ordered investigation into the affairs of Adarsh Group of Companies and LLPs by the Serious Fraud Investigation Office (hereinafter referred to as SFIO ) in public interest and Director SFIO appointed a team of officers to carry out investigation. 3. The petitioner was called upon to join investigation along with Rahul Modi and Mukesh Modi and certain others. The order of the Central Government had given a period of three months to the SFIO to complete the investigation and submit their report. But the same could not be completed by SFIO within the said period of time. 4. The petitioner claims that he was called upon to appear for investigation on 10.12.2018 and when he appeared before respondent no.2, he was illegally arre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... granted on 14.12.2018. This Court had, therefore, adjourned the matter to 26.12.2018 to enable the learned counsel to revert on this aspect. 7. On 26.12.2018, the learned senior counsel for the petitioner handed over an order dated 21.12.2018 passed by the Sessions Judge, Gurugram whereby the learned Sessions Judge had remanded the petitioner to judicial custody till 04.01.2019; while, in compliance of an order of the Division Bench of this Court, as referred to below, the other two accused persons Mukesh Modi and Rahul Modi were released on bail on furnishing bail bonds in the sum of ₹ 5 lakh each, with two sureties in the like amount. 8. Learned senior counsel for the petitioner vehemently contended that the investigation agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h an habeas corpus petition with the remand orders passed by a court at Gurugram was also decided in the said judgment. 9. Per contra, the learned Additional Solicitor General appearing on behalf of the respondents contended that in the short counter-affidavit filed on behalf of respondent Nos. 2 to 4, the respondents have clearly brought out that the essence of the SFIO s investigation was to unearth huge sums of money diverted/siphoned-off from the entities under investigation. She submitted that the investigation had so far revealed that the amount allegedly siphoned off belongs to 22 lakh poor depositors of Adarsh Credit Cooperative Society Limited, Ahmedabad and outstanding balance due to the depositors is upward of ₹ 10,000 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oning-off of large sums of money, as the present. Reading Section 212(3) of Companies Act, it was argued that the legislature has consciously used the word may and not shall in the said provision. The attention of the Court was also drawn to Section 212(8) of the Companies Act wherein powers have been given to the SFIO to arrest a person when found guilty of an offence under Section 447 of the Companies Act. The argument advanced was that sub-section (8) and sub-section (3) of Section 212 operate in two different fields and the power of arrest is independent of the time-line prescribed for investigation under Section 212(3) which time-line is for submission of a report by the SFIO to the Central Government, coupled with the fact that su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al and legal, which were not raised in that case and were accordingly not considered inter alia that the provisions of Sections 212(3) and 212(8) of the Companies Act operate in two different fields and the power of investigation and power of arrest are independent of each other; that the stipulation as to time-frame for investigation may not necessarily apply to the time period for which a person may be placed under arrest; that it is the prerogative of the SFIO to submit even an interim report at any stage of the investigation; that the petitioner in the present case is in Judicial Custody and not SFIO custody; that the Companies (Amendment) Act, 2015 making the offence of fraud under Section 447 of the Companies Act a cognizable offence ..... X X X X Extracts X X X X X X X X Extracts X X X X
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