TMI Blog2023 (4) TMI 1030X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Hon ble Apex Court in Satender Kumar Antil [ 2022 (8) TMI 152 - SUPREME COURT ], when an accused, who has not been arrested during investigation, and investigating agency does not require his/her custody, and the accused appears pursuant to summoning order before Trial Court, there is no need to file any bail application since there is no need to arrest the said accused. It has also been clarified by the Hon ble Apex Court that if the Court taking cognizance is of the opinion that remand of accused is necessary, an opportunity to be heard has to be given to the accused. It is an admitted position, that even at the stage when the applicant appeared before the learned Trial Court upon being summoned, the Investigating Officer never sought his remand to judicial custody. It is not the case of prosecution that applicant did not join or did not co-operate in the investigation. The Director of accused company Komal Chadha has already been granted bail by this Court, and present applicant is allegedly an employee of accused company. There is no allegation that applicant can either intimidate any witnesses or tamper with the evidence - A perusal of complaint also shows that accu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court on 07.12.2015 had issued directions to Serious Fraud Investigation Office (hereinafter SFIO ) to investigate certain issues, and pursuant to same, SFIO conducted an investigation in limited scope and the report was submitted to this Court on 20.05.2016 as well as to the Ministry of Corporate Affairs. Thereafter, the Ministry of Corporate Affairs ordered investigation into the affairs of PPPL on 14.03.2017. The said investigation led to the filing of present complaint case. 4. The case of prosecution is that the main accused Suman Chadha (accused no. 2 in complaint) i.e. Director of PPPL used to procure plastic granules from large scale public sector undertakings as well as from local suppliers, and this was sold in cash to local vendors without any tax invoices, whereas tax invoices for these cash sales were issued to various entities including many related parties to adjust the purchases. Similarly, tax invoices without any underlying goods were also issued to non-related parties who required it for availing credit of duty (VAT). In order to carry out this deception, several sham entities were formed by accused no. 2 in the name of his relatives and employees. The bank ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adha. It is stated that applicant is an illiterate person and was working as an office boy in the main accused company. It is also submitted that one of the main accused Komal Chadha, who is the Director of PPPL and wife of Suman Chadha, has already been granted regular bail by a Co-ordinate bench of this Court vide order dated 21.12.2022 in Bail Application No. 1740/2022. It is stated that as also held by the Co-ordinate bench while granting bail to co-accused Komal Chadha, the twin conditions and bar under Section 212(6) of Companies Act shall not come in way of present application since the applicant was not arrested consciously by investigating agency during the course of investigation. In this regard, reliance is also placed upon the decision of Apex Court in Satender Kumar Antil v. CBI (2022) 10 SCC 51. 7. It is argued by learned counsel for applicant/accused that the applicant had joined the investigation and after completion of investigation, charge-sheet was filed without his arrest. It is stated that investigating agency did not arrest the applicant during the entire period of investigation i.e. for around 06 years, but applicant was arrested at the instance of Court w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ), the limitation or bar to grant of bail under Section 212(6) is in addition to the limitations under the Code of Criminal Procedure, 1973 or any other law for grant of bail. The aforesaid principles were held to be mandatory in nature by the Hon ble Apex Court in Serious Fraud Investigation Office v. Nitin Johari Anr. (2019) 9 SCC 165. 12. However, the applicant in the present case was not arrested during the course of investigation, but was taken into custody at the instance of Court when the accused persons were summoned by the learned Trial Court to appear for trial. In the present context, it will relevant to take note of the recent decision of Hon ble Apex Court in Satender Kumar Antil v. CBI (2022) 10 SCC 51 wherein it has been observed as under: Section 170 of the Code: 170. Cases to be sent to Magistrate when evidence is sufficient. (1) If, upon an investigation under this Chapter, it appears to the officer in charge of the police station that there is sufficient evidence or reasonable ground as aforesaid, such officer shall forward the accused under custody to a Magistrate empowered to take cognizance of the offence upon a police report and to try the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ail, there is no need for further arrest at the instance of the court. Similarly, we would also add that the existence of a pari materia or a similar provision like Section 167(2) of the Code available under the Special Act would have the same effect entitling the accused for a default bail. Even here the court will have to consider the satisfaction under Section 440 of the Code... (Emphasis supplied) 13. The issue at hand was also considered by a Co-ordinate Bench of this Court in Rana Kapoor v. Directorate of Enforcement 2022 SCC OnLine Del 4065, where under similar circumstances, the accused therein was never arrested during the period of investigation and at a later stage, after the concerned Court took cognizance, he was taken into custody in a case under Prevention of Money Laundering Act, 2002. The relevant portion of the said order reads as under: 33. The applicant was not implicated in FIR bearing RC No. 2232021A0005 registered by CBI. The applicant was implicated in present criminal complaint filed by the respondent/ED and arrayed as accused no 2. The investigating officer consciously did not arrest the applicant. The applicant participated in investigatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n would have been different, had the applicant arrested during investigation. The investigating agency as mentioned hereinabove consciously preferred not to arrest the applicant during investigation or post filing of charge sheet. The arguments advanced and case law relied on by the Special Counsel for the respondent are considered in right perspective to the given facts and circumstances but they do not provide much legal help to the respondent in opposing present bail application. (Emphasis supplied) 14. A perusal of order dated 25.05.2022 reveals that the applicant had not filed any bail application while entering his appearance, and simply because of the said reason, the applicant was sent to judicial custody without assigning any reason whatsoever as to why his custody was necessary, even though the same was not sought by the investigating agency. The relevant portion of order dated 25.05.2022 qua the present application reads as under: ...No any bail application is moved by other accused persons who are present before the Court today. It is submitted on behalf of accused persons that none of the accused persons who are present before the Court is having any pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any Komal Chadha has already been granted bail by this Court, and present applicant is allegedly an employee of accused company. There is no allegation that applicant can either intimidate any witnesses or tamper with the evidence. Even otherwise, the alleged fraudulent transactions in the present case relate to the years 2012 to 2015 and investigation qua the same is complete and cognizance has already been taken by the concerned Court. A perusal of complaint also shows that accused no. 2 i.e. Suman Chadha had created several entities in the name of his employees, including the present applicant. In fact, the driver of the said accused is named as proprietor in one such entity namely S.K. Enterprises. 18. Considering the aforesaid discussion, and the fact that petitioner is in judicial custody since 25.05.2022, this Court is inclined to grant bail to accused/applicant on furnishing a personal bond in the sum of Rs.50,000/- with one surety of like amount to the satisfaction of Trial Court/ Successor Court/ Link M.M/ Duty M.M concerned on the following terms and conditions: i. The applicant shall surrender his passport, if any, before the learned Trial Court and shall not lea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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