TMI Blog2021 (9) TMI 1449X X X X Extracts X X X X X X X X Extracts X X X X ..... acto indicates commission of offences, as per the prosecution and the material collated is compiled in the charge-sheet. In any case, if material brought on record indicates the gravity of the offence and culpability as well as complicity of the accused persons then in that case, the Court is duty bound to exercise its power, which have been invoked by preferring an application as per Sections 437 and 439 of the Code. The Court of the Magistrate or the Sessions Court cannot be held bereft of power and jurisdiction to grant bail or decline bail, once an application is preferred before it and in such a contingency, the said Court is duty bound to take into account the evident material, emerging from the charge-sheet - While charting out the procedure to be adopted by the investigating agency, it is held that unless arrest is necessary for the purpose of investigation or custodial interrogation, it shall not be adopted as a routine course, but with a clarification that arrest may be necessary if the offence is of grave nature and prescribes severe punishment. The directions for the Criminal Courts fnd its genesis in the well settled principle in case of JOGINDER KUMAR VERSUS STATE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bail. Application dismissed. - CRIMINAL BAIL APPLICATION NO.3323 OF 2021, CRIMINAL BAIL APPLICATION NO.3325 OF 2021, CRIMINAL BAIL APPLICATION NO.3326 OF 2021 AND CRIMINAL BAIL APPLICATION NO.3334 OF 2021 - - - Dated:- 28-9-2021 - BHARATI DANGRE, J. For the Applicant:-Mr. Amit Desai, senior counsel with Mr. Mahesh Jethmalani,senior counsel, Ms. Siya Chaudhary, Ms. Shruti Gujral, Mr.Archit Jayakar, Mr. Gopal, Mr. Prasad Sawant, Ms. Dhwani Parekh, Ms. Pooja Yadav and Ms. Juhi, Mr. Aabad Ponda, senior counsel with Mr. Puneet Arora, Ms.Puneeta Arora and Mr. Sahil Mahajan i/b M/s. Arora Co. For the Respondent:-Mr. H.S. Venegaonkar ORDER 1. The four applications are instituted by the Applicants, seeking their release on bail on being charge-sheeted. Barring the Applicant-Roshini Kapoor, all the three other Applicants are charge-sheeted in the second charge-sheet vide 13/07/2021. All the four Applicants are represented by the respective senior counsel, who have vehemently pressed into service the most cherished principle, which forms integral part of the Constitution and the arguments revolve around the Applicants being deprived of their liberty, without fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is argued that the factum of they not having been arrested during investigation or not being produced in custody itself entitle them to be released on bail, without probing into the gravity of accusations. It is urged that other relevant considerations for being released on bail; fight risk and likelihood of tampering with the prosecution case neither existed during the course of investigation nor have been expressed before the Trial Court. In these peculiar facts, the impugned order rejecting the bail applications, is subjected to heavy criticism as not adhering to the procedure established by law. It is also argued by the learned senior counsel that sometimes wrong practices, which are mechanically followed, may result into an inconvenient situation, but ultimately since the procedure can only be considered as handmaid of justice, substantive justice itself cannot be avoided. A decision of Allahabad High Court in case of Vishwa Nathi Jiloka Ors. V. Ist Munsif Lower Criminal Court, Baharaich Ors 1989 SCC Online All 228 and decision of the Kerala High Court in case of Sreekumar V. State of Kerala 2008 SCC OnLine Ker 318, is pressed into service. Learned senior counsel woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kapoor, the then Promoter / Director of M/s. Yes Bank Limited was arraigned as the prime accused. The gist of the accusations compiled by the prosecution can pithily culled out as under: (a) The investigation reveals that the DHFL, a licensed housing fnance corporation recognized by National Housing Bank, falling in the category of Non Banking Finance Company ( NBFC ) was established to enable access to economical housing fnance to lower and middle income groups in semi urban and rural parts of India. As on June, 2018, it had 209 branches and service centers with a representative offce in London. The capital base of the DHFL is equity capital and free reserves from accumulated profits forms its capital. (b) From April, 2018 onwards, DHFL was mobilising more funds for its alleged growth in business and its MD Kapil Wadhawan decided to borrow funds through NCDs from the market. Investigation reveals that M/s. Yes Bank subscribed NCDs of DHFL of the value of Rs.3700 crores which was the highest single subscription of an institution. The investigation revealed that M/s. DOIT Enterprises (India) Pvt. Ltd. was registered with RoC on 30/03/2012 and Radha Kapoor Khanna and Ms. Rosha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s made. This was done with a motive to ever greening of old loans and to release the personal guarantee of Rana Kapoor, the then CEO of Yes Bank. Investigation revealed that M/s.DOIT Enterprises (I) Pvt. Ltd. had applied for Mortgage loan of Rs.300 crores. The loan application dated Nil was signed by Bindu Kapoor as Director and Authorized Signatory of the Company M/s.DOIT Enterprises (I) Pvt. Ltd. The said mortgage loan was sanctioned on the irrevocable personal guarantee of Bindu Kapoor and Rana Kapoor, MD and CEO of Yes Bank and corporate guarantee of the companies related to the family of Rana Kapoor. (f) Investigation revealed that in pursuance of the criminal conspiracy, in order to avoid the detailed processing fo enhancement of aforesaid mortgaged loan and to further avoid fnance committee, Kapil Wadhwan, the then CMD, unauthorizedly sanctioned a bridge loan of Rs.300 crores to M/s. DOIT (new name of the DoIT Enterprises (India) Pvt. Ltd.) and allowed disbursement on 26/04/2018 in the account of M/ s. DOIT without any due diligence, on the request of Radha K. Khanna made on the same date of the disbursement. This bridge loan was sanctioned to aforesaid company in viol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grounds exist to issue summons against the accused persons named in the supplementary charge-sheet being Accused Nos.9 to 14, the summons are issued and the Investigating Officer is directed to furnish copy of the supplementary charge-sheet to all the accused persons. The matter is adjourned for hearing on charge/appearance to 4/9/2021. 6. On 04/09/2021, the prosecution has moved an application in case of Accused No.7 praying that she may be taken into judicial custody since certain new offences are added in the supplementary charge-sheet being offences punishable under Sections 468 and 471 of the IPC. 7. The Applicants Roshini Kapoor, Bindu Kapoor and Radha Kapoor fled Bail Applications under Section 439 read with Section 437 read with Section 88 of the Code seeking their release on bail on various grounds set out in the applications. The applications are fled on 08/09/2021 and pending fnal hearing of the applications, interim bail order is passed by learned Judge. All the three Bail Applications are rejected by the common order passed on 18/09/2021. As far as Applicant Rajiv Anand is concerned, he moved an Application for anticipatory bail on receipt of summons from the Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isclose sufficient material to proceed with the trial. Once the cognizance is taken by the Court of competent jurisdiction, the accused comes under the control of the said court and would abide by the direction of the court and it is thereafter that he shall be subjected to trial. Taking cognizance, though not defined in the Code, it is understood as application of mind to the suspected commission of an offence. 9. When the accused, who is now charge-sheeted appears before the Court, he can be stated to be in judicial custody and submit to the directions of the Court. In case of Nirmal Jeet Kaur v. State of M.P (2004) 7 SCC 558, the Hon'ble Apex Court has observed as under: 16. The crucial question is when a person is in custody, within the meaning of Section 439 Criminal Procedure Code? When he is in duress either because he is held by the investigating agency or other police or allied authority or is under the control of the court having been remanded by judicial order, or having offered himself to the court's jurisdiction and submitted to its orders by physical presence. No lexical dexterity nor precedential profusion is needed to come to the realistic conclusi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore any Court would give rise to a presumption that the accused is in custody and that particular Court is duty bound to apply its mind to the material set forth before it, moreso for the reason that fling of charge-sheet ipso facto indicates commission of offences, as per the prosecution and the material collated is compiled in the charge-sheet. In any case, if material brought on record indicates the gravity of the offence and culpability as well as complicity of the accused persons then in that case, the Court is duty bound to exercise its power, which have been invoked by preferring an application as per Sections 437 and 439 of the Code. 12. The Court of the Magistrate or the Sessions Court cannot be held bereft of power and jurisdiction to grant bail or decline bail, once an application is preferred before it and in such a contingency, the said Court is duty bound to take into account the evident material, emerging from the charge-sheet. In cases where the offences alleged indicate that they are grave, heinous, barbaric, seditious or aimed at damaging the financial health of the State, then in that case the concerned Court is expected to take into consideration various fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng agency, it is held that unless arrest is necessary for the purpose of investigation or custodial interrogation, it shall not be adopted as a routine course, but with a clarification that arrest may be necessary if the offence is of grave nature and prescribes severe punishment. The directions for the Criminal Courts fnd its genesis in the well settled principle in case of Joginder Kumar V. State of U.P. 1994 SCC (4) 260 that arrest cannot be made in a routine manner as it amounts to deprivation of a person's liberty. The illustration given is in regard to the offences under Section 498A, where though the accused is not arrested during investigation, he is directed to be arrested at the stage of fling of charge-sheet. 14. The fact, therefore, remains that the accused who has been allegedly involved in commission of heinous and grave offence, should be investigated and in view of the fact that if the incriminating material is to be seized or fruitful information is to be elicited then arrest can be adverted to. Arrest can also become necessary if the offence is of grave nature and there is likelihood of the offender absconding or fleeing away from justice. This would all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In State v. Jaspal Singh Gill (1984) 3 SCC 555: AIR 1984 SC 1503, the Hon'ble Apex Court expressed the view that the court before granting bail in cases involving non-bailable offences, particularly where the trial has not yet commenced should take into consideration various factors such as the nature and seriousness of the offence, character of the evidence, circumstances peculiar to the accused, a reasonable possibility of the accused not presenting himself during trial and reasonable apprehension of witnesses being tampered with and the larger interest of the society or the State. 16. In any case, considering the three anterior stages, before converting a suspect to a convict, which involves a stage of actual interrogation when an accused is taken in police custody, followed by the stage of judicial custody, which ensure completion of investigation and collection of the material in form of the final report to be placed before the Magistrate/Competent Court, which is duty bound to ensure a fair trial. It is only upon the presentation of the charge-sheet, where the full material is compiled together, the gravity of the offence could be judged and, the possibility of conv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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