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TMI Blog2020 (9) TMI 1235X X X X Extracts X X X X X X X X Extracts X X X X ..... ri International Ltd. & hereinafter referred to as 'the LMJIL') in the year 2017, in pursuance to which the complainant agreed to sanction Rs. 25 crores towards the "Working Capital Demand Loan" vide Sanction letter dated 12.10.2017. Besides the above, a Facility Agreement dated 17.10.2017 and a Tripartite Off-take Agreement were also entered into between the complainant, the SALL and the LMJIL. While the SALL was in the business of commodity trading, the LMJIL was in the business of import and export of the commodities. 3. It is submitted that initially in the year 2015, at the instance of one Subir Chakraborty, a representative of the Standard Chartered Bank, the SALL was provided credit facilities by the Standard Chartered Bank where a Tripartite Off-take Agreement was executed between the LMJIL, the Standard Chartered Bank and the SALL. Subsequently, the agreed limits sanctioned by the Standard Chartered Bank were considerably reduced which affected the affairs of the company. At that point of time, Mr. Subir Chakraborty again approached the SALL and introduced the complainant for the purpose of financing to the extent of reduced credit facility by the Standard Chartered Bank. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. Rajnish Gaur, learned counsel for the complainant, has vehemently opposed the bail application. She has referred to the Facility Agreement as well as the Tripartite Off-take Agreement to submit that the latter was entered into with LMJIL for the reason that in case the SALL was unable to sell the commodities, the same would be sold by the LMJIL on its behalf. She further submitted that the amount of Rs. 25 crores received by the SALL was, in fact, transferred to the other sister concerns/shell companies on the same day and the amount of Rs. 15 crores was used by the LMJIL to square off its credit facility with the Corporation Bank. She also submitted that the investigation qua the offence of forgery is with respect to the opening of bank accounts of the sister concerns and the same is still pending investigation. 8. In rejoinder arguments, learned Senior Counsels for the petitioner submitted that even from the charge-sheet itself, it is apparent that all the amounts which had gone to the sister concerns were only rotational entries and were received back in the account of the LMJIL on the very same day. It was further submitted that LMJIL was made a party in the Tripartite Offt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted for it or not or to refuse bail to an unconvicted person for the purpose of giving him a taste of imprisonment as a lesson. 24. In the instant case, we have already noticed that the "pointing finger of accusation" against the appellants is "the seriousness of the charge". The offences alleged are economic offences which have resulted in loss to the State exchequer. Though, they contend that there is a possibility of the appellants tampering with the witnesses, they have not placed any material in support of the allegation. In our view, seriousness of the charge is, no doubt, one of the relevant considerations while considering bail applications but that is not the only test or the factor: the other factor that also requires to be taken note of is the punishment that could be imposed after trial and conviction, both under the Penal Code and the Prevention of Corruption Act. Otherwise, if the former is the only test, we would not be balancing the constitutional rights but rather "recalibrating the scales of justice". 25. The provisions of CrPC confer discretionary jurisdiction on criminal courts to grant bail to the accused pending trial or in appeal against convictions; sin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... never his presence is required. xxx xxx xxx 43. There are seventeen accused persons. Statements of witnesses run to several hundred pages and the documents on which reliance is placed by the prosecution, are voluminous. The trial may take considerable time and it looks to us that the appellants, who are in jail, have to remain in jail longer than the period of detention, had they been convicted. It is not in the interest of justice that the accused should be in jail for an indefinite period. No doubt, the offence alleged against the appellants is a serious one in terms of alleged huge loss to the State exchequer, that, by itself, should not deter us from enlarging the appellants on bail when there is no serious contention of the respondent that the accused, if released on bail, would interfere with the trial or tamper with evidence. We do not see any good reason to detain the accused in custody, that too, after the completion of the investigation and filing of the charge-sheet. xxx xxx xxx 46. We are conscious of the fact that the accused are charged with economic offences of huge magnitude. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r consideration is otherwise entitled to bail on the merits of his own case. Hence, in our view, such consideration including as to "flight risk" is to be made on individual basis being uninfluenced by the unconnected cases, more so, when the personal liberty is involved. xxx xxx xxx 27. As discussed earlier, insofar as the "flight risk" and "tampering with evidence" are concerned, the High Court held in favour of the appellant by holding that the appellant is not a "flight risk" i.e. "no possibility of his abscondence". The High Court rightly held that by issuing certain directions like "surrender of passport", "issuance of look out notice", "flight risk" can be secured. So far as "tampering with evidence" is concerned, the High Court rightly held that the documents relating to the case are in the custody of the prosecuting agency, Government of India and the Court and there is no chance of the appellant tampering with evidence. xxx xxx xxx 33. The appellant is not a "flight risk" and in view of the conditions imposed, there is no possibility of his abscondence from the trial. Statement of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no such bar created in the relevant enactment passed by the legislature nor does the bail jurisprudence provides so. Therefore, the underlining conclusion is that irrespective of the nature and gravity of charge, the precedent of another case alone will not be the basis for either grant or refusal of bail though it may have a bearing on principle. But ultimately the consideration will have to be on case to case basis on the facts involved therein and securing the presence of the accused to stand trial." 14. The law on bail was very comprehensively encapsulated in the decision of Nikesh Tarachand Shah v. Union of India & Anr. reported as (2018) 11 SCC 1, wherein it has been held as under:- "15. The provision for bail goes back to Magna Carta itself. Clause 39, which was, at that time, written in Latin, is translated as follows: "No free man shall be seized or imprisoned or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land." It is well known that Magna Carta, which was wrung out of K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... illar to post in order to be admitted to bail. The Lord Chief Justice sent him to the Lord Chancellor, who, in turn, sent him to the Lord Treasurer, who sent him to the King himself, who, "immediately commanded that the laws should have their due course". (See Jenke's case [Jenke's case, (1676) 6 How St Tr 1189], How St Tr at pp. 1207 & 1208). It is cases like these that led to the next great milestone of English history, namely, the Habeas Corpus Act, 1679. This Act recited that many of the King's subjects have been long detained in prison in cases where, by law, they should have been set free on bail. The Act provided for a habeas corpus procedure which plugged legal loopholes and even made the King's Bench Judges subject to penalties for non-compliance. 17. The next great milestone in English history is the Bill of Rights, 1689, which was accepted by the only Dutch monarch that England ever had, King William III, who reigned jointly with his wife Queen Mary II. It is in this document that the expression "excessive bail ought not to be required..." first appears in Chapter 2 Clause 10. 18. What is important to learn from this history is that Clause 39 of the M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s observed by the Court that there was no hard-and-fast rule and no inflexible principle governing the exercise of the discretion conferred by Section 498 and that the only principle which was established was that the discretion should be exercised judiciously. In Emperor v. H.L. Hutchinson [Emperor v. H.L. Hutchinson, 1931 SCC OnLine All 14 : AIR 1931 All 356 : 1931 Cri LJ 1271] , AIR p. 358 it was said that it was very unwise to make an attempt to lay down any particular rules which will bind the High Court, having regard to the fact that the legislature itself left the discretion of the court unfettered. According to the High Court, the variety of cases that may arise from time to time cannot be safely classified and it is dangerous to make an attempt to classify the cases and to say that in particular classes a bail may be granted but not in other classes. It was observed that the principle to be deduced from the various sections in the Criminal Procedure Code was that grant of bail is the rule and refusal is the exception. An accused person who enjoys freedom is in a much better position to look after his case and to properly defend himself than if he were in custody. As a pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail. [Ref: Prasanta Kumar Sarkar v. Ashis Chatterjee reported as (2010) 14 SCC 496] 16. Coming to the facts of the present case, it is an admitted fact that the co-accused namely Navin Kumar Jain and Hulash Chand Jain were the other Directors and shareholders of SALL as well as LMJIL. They also signed/undertook personal guarantee to the complainant company in their capacity as Directors of the SALL against the "Working Capital Demand Loan". Navin Jain had also signed the Tripartite Off-take Agreement in the capacity of Director of LMJIL. Both of them were not even arrested and the charge sheet against them was filed without arrest. During two years of enquiry/investigation, the petitioner joined investigation on multiple occasions. After his arrest, the EOW sought only one day PC remand. Neither in the Status Report nor during t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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