TMI Blog2020 (9) TMI 1235X X X X Extracts X X X X X X X X Extracts X X X X ..... d on documents that already stand seized. The petitioner has already approached the NCLT where a moratorium on the assets/properties has been declared and an IRP has been appointed. The complainant has already approached NCLT. The petitioner is directed to be released on regular bail on his furnishing a personal bond in the sum of ₹ 25 lacs alongwith two sureties of the like amount each to the satisfaction of the trial court and subject to further conditions imposed - the bail is granted - application allowed. - BAIL APPLN. 2442/2020 - - - Dated:- 14-9-2020 - HON'BLE MR. JUSTICE MANOJ KUMAR OHRI Petitioner Through: Mr. Mukul Gupta and Mr. Vikas Pahwa, Sr. Advocates with Mr. Sunil K Mittal, Mr. Vikas Sethi, Mr.Anshul Mittal, Mr. Syed Arham Masud and Ms. Raavi Sharma, Advocates Respondent Through: Ms. Radhika Kolluru, APP for State. Mr. Rajnish Gaur, Advocate for complainant (VIA VIDEO CONFERENCING) MANOJ KUMAR OHRI, J. (ORAL) 1. The present application has been filed under Section 439 Cr.P.C. read with Section 482 Cr.P.C. seeking regular bail in FIR No. 128/2019 registered under Sections 409/420/467/468/471/120B IPC at P.S. Economic Offen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olkata Bench by way of an application under Section 10 of the Insolvency and Bankruptcy Code, 2016 for initiating Corporate Insolvency Resolution Process of Sri Aranath Logistics Ltd. (the SALL) on 16.06.2018. The NCLT vide order dated 08.11.2019, declared the moratorium and also permitted the complainant, who had filed objections as a Financial Creditor, to raise the same before the appointed IRP. 5. It was further submitted that after the arrest of the petitioner on 03.07.2020, only one day of PC remand was given and since the chargesheet has been filed, the petitioner is no more required for any further investigation. While referring to the charge-sheet, it was pointed out that the other Directors of the company were not even arrested and the charge-sheet against them was filed without arrest. Lastly, it was submitted that the petitioner is 50 years old and whether the transactions involve the element of cheating is a matter of trial. 6. Mr. Vikas Pahwa, learned Senior Counsel appearing for the petitioner submitted that while the transaction in the present matter took place in the year 2017, the complaint came to be filed only in the year 2018. During the investigation, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. 22. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, necessity is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f bail on two grounds: the primary ground is that the offence alleged against the accused persons is very serious involving deep-rooted planning in which, huge financial loss is caused to the State exchequer; the secondary ground is that of the possibility of the accused persons tampering with the witnesses. In the present case, the charge is that of cheating and dishonestly inducing delivery of property and forgery for the purpose of cheating using as genuine a forged document. The punishment for the offence is imprisonment for a term which may extend to seven years. It is, no doubt, true that the nature of the charge may be relevant, but at the same time, the punishment to which the party may be liable, if convicted, also bears upon the issue. Therefore, in determining whether to grant bail, both the seriousness of the charge and the severity of the punishment should be taken into consideration. 40. The grant or refusal to grant bail lies within the discretion of the court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circumstances of each case. The following factors are to be taken into consideration while considering an application for bail:- (i) the nature of accusation and the severity of the punishment in the case of conviction and the nature of the materials relied upon by the prosecution; (ii) reasonable apprehension of tampering with the witnesses or apprehension of threat to the complainant or the witnesses; (iii) reasonable possibility of securing the presence of the accused at the time of trial or the likelihood of his abscondence; (iv) character behaviour and standing of the accused and the circumstances which are peculiar to the accused; (v) larger interest of the public or the State and similar other considerations (vide Prahlad Singh Bhati v. NCT, Delhi (2001) 4 SCC 280). There is no hard and fast rule regarding grant or refusal to grant bail. Each case has to be considered on the facts and circumstances of each case and on its own merits. The discretion of the court has to be exercised judiciously and not in an arbitrary manner. At this stage itself, it is necessary for us to indicate that we are unable to accept the contention of the learned Solici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 23. Thus from cumulative perusal of the judgments cited on either side including the one rendered by the Constitution Bench of this Court, it could be deduced that the basic jurisprudence relating to bail remains the same inasmuch as the grant of bail is the rule and refusal is the exception so as to ensure that the accused has the opportunity of securing fair trial. However, while considering the same the gravity of the offence is an aspect which is required to be kept in view by the Court. The gravity for the said purpose will have to be gathered from the facts and circumstances arising in each case. Keeping in view the consequences that would befall on the society in cases of financial irregularities, it has been held that even economic offences would fall under the category of grave offence and in such circumstance while considering the application for bail in such matters, the Court will have to deal with the same, being sensitive to the nature of allegation made against the accused. One of the circumstances to consider the gravity of the offence is also the term of sentence that is prescribed for the offence the accused is alleged to have committed. Such consideration wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was unwilling to give up his military ambition and resorted to the expedient of a forced loan to finance it. A number of those subject to the imposition declined to pay, and some were imprisoned; among them were those who became famous as the Five Knights . Each of them sought a writ of habeas corpus to secure his release. One of the Knights, Sir Thomas Darnel, gave up the fight, but the other four fought on. The King's Bench, headed by the Chief Justice, made an order sending the Knights back to prison. The Chief Justice's order was, in fact, a provisional refusal of bail. Parliament being displeased with this, invoked Magna Carta and the Statutes of Westminster, and thus it came about that the Petition of Right was presented and adopted by the Lords and a reluctant King. Charles I reluctantly accepted this Petition of Right stating, let right be done as is desired by the petition . Among other things, the petition had prayed that no free man should be imprisoned or detained, except by authority of law. 16. In Bushell's case [Bushell's case, 1670 Vaughan 135 : 124 ER 1006], decided in 1670, Sir John Vaughan, C.J. was able to state that: (ER p. 1007) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate of Punjab [Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565 : 1980 SCC (Cri) 465], the purpose of granting bail is set out with great felicity as follows: (SCC pp. 586-88, paras 27-30) 27. It is not necessary to refer to decisions which deal with the right to ordinary bail because that right does not furnish an exact parallel to the right to anticipatory bail. It is, however, interesting that as long back as in 1924 it was held by the High Court of Calcutta in Nagendra Nath Chakravarti, In re [ Nagendra Nath Chakravarti, In re, 1923 SCC OnLine Cal 318 : AIR 1924 Cal 476 : 1924 Cri LJ 732] , AIR pp. 479-80 that the object of bail is to secure the attendance of the accused at the trial, that the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial and that it is indisputable that bail is not to be withheld as a punishment. In two other cases which, significantly, are the Meerut Conspiracy cases observations are to be found regarding the right to bail which deserve a special mention. In K.N. Joglekar v. Emperor [K.N. Joglekar v. Emperor, 1931 S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t human right. 29. In Gurcharan Singh v. State (UT of Delhi) [Gurcharan Singh v. State (UT of Delhi), (1978) 1 SCC 118 : 1978 SCC (Cri) 41] it was observed by Goswami, J., who spoke for the Court, that: (SCC p. 129, para 29) 29. There cannot be an inexorable formula in the matter of granting bail. The facts and circumstances of each case will govern the exercise of judicial discretion in granting or cancelling bail. 30. In American Jurisprudence (2nd, Vol. 8, p. 806, para 39), it is stated: Where the granting of bail lies within the discretion of the court, the granting or denial is regulated, to a large extent, by the facts and circumstances of each particular case. Since the object of the detention or imprisonment of the accused is to secure his appearance and submission to the jurisdiction and the judgment of the court, the primary inquiry is whether a recognizance or bond would effect that end. It is thus clear that the question whether to grant bail or not depends for its answer upon a variety of circumstances, the cumulative effect of which must enter into the judicial verdict. Any one single circumstance cannot be treated as of universal val ..... X X X X Extracts X X X X X X X X Extracts X X X X
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