TMI Blog2019 (10) TMI 1556X X X X Extracts X X X X X X X X Extracts X X X X ..... that the Special Court at Gurugram does not have the jurisdiction. Whether the petitioner is entitled to be protected against his arrest or not? - HELD THAT:- This court is of the view that although right to seek anticipatory bail is not a fundamental right, yet an individual is having a right to life and liberty, as granted by Article 21 of the Constitution of India. However, the said right can very well be curtailed by the procedure established by law. The normal procedure for curtailing the liberty of a person accused in offence is that the accused can be arrested even without warrants from the court. Same is the situation under the new Companies Act as well and the authorized officer/designated officer can arrest a person even without warrants issued from a court. However, to ensure that an innocent person is not unduly harassed by taking him into custody, the courts have been conferred a special power under Section 438 Cr. P.C. - So far as the present case is concerned, the investigation of the case is already complete. The investigating officer of the case had not even considered it appropriate to arrest the petitioner during the investigation. Therefore, the investigati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted from the general public. After collecting this money from the public, Mukesh Modi and family created number of companies, with their associates and relatives as the Directors. Subsequently these companies were advanced loan by the above said Cooperative Society. These loans, though were required to be returned with interest; specified in the documents of loan, however, the same were not returned by the companies. One of these companies was Sambhav Energy Limited (hereinafter referred to as SEL ), incorporated with its registered office and Chennai. In this company, Mukesh Modi and his associates/relatives were also the Directors. The petitioner was also a Director in this company from the year 2005 onwards; till 2017. Besides being a Director, the petitioner was also equity holder to the extent of 6% in this company; up to the year 2011. The company SEL had also availed a loan of about 62 crores from the above said Cooperative Society. The company SEL received loan from the Cooperative Society from the year 2013 onwards and continued to get loans up to the year 2016. However, the company SEL had neither repaid the principal amount nor the interest accruing thereon. Therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ying the offences punishable under Section 447 of the new Companies Act. A total of 18 offences have been specified which are to be punishable or covered under Section 447 of the new Companies Act, by deeming fiction. The offences alleged against the petitioner do not fall in the Sections enumerated in the notification. Hence, in the case of the petitioner, rigor of twin conditions, as prescribed under Section 212(6) of the new Companies Act, is not attracted. 4. It is further contended by the counsel for the petitioner that since the office of the company of the petitioner, namely, Sambhav Energy Limited, is situated at Chennai, therefore, the Special Court at Chennai only shall have the jurisdiction to entertain the complaint qua company offences, as prescribed under the new Companies Act itself. Hence, the court at Gurugram does not have any jurisdiction even to summon the petitioner, much less to speak of taking the petitioner into custody. Therefore, it is submitted that since the order of summoning itself is without jurisdiction, therefore, the petitioner should be protected against the unauthorized attempt of the respondent to ensure that the petitioner is taken into cust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is capacities. The counsel for the petitioner has also pointed out that although the petitioner remained associated with the company SEL, however, the petitioner had never received any remuneration from the company as Director. He had only invested in the share capital of the company; at the first instance and at the initial stage. But even that equity was later on sold by him to the main controllers of the company. Even on account of equity held by the petitioner, the petitioner, did not avail any benefit in cash or kind from the company. Hence, it is submitted by the counsel for the petitioner that from the alleged loan availed by the company, the petitioner has not drawn any benefit, monetary or otherwise, from his association with the said company. Still further it is submitted that the petitioner is not involved in any other case of any kind. Even with the present company, the petitioner was involved only as a technical expert in the pursuit of his scientific and technical dream, having nothing to do with the financial benefits. Therefore, the petitioner is totally innocent person. The chargesheet has already been filed before the Court. The petitioner is not required for any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat protection under Section 438 Cr.P.C. is available to the accused only till the Court summons the accused or the accused is produced or appears before the court to face the chargesheet. Once summoned/appeared, the accused has to surrender to the jurisdiction of the trial court and seek regular bail under Section 439 Cr.P.C. Accordingly, it is submitted that since the charge-sheet is already filed before the trial Court by the investigating agency, therefore, the present petition itself is not maintainable. 8. As a specific query from the Court, the learned counsel for the SFIO has not categorically denied the fact that the petitioner was not a signatory to anyone of the resolutions for taking loans from the above said Cooperative Society. However, the learned counsel for the SFIO argued that the petitioner is not being prosecuted as officer in default as defined under Section 2(60) of the Companies Act. He is being prosecuted only in his capacity as a Director . Therefore, whether he has any active participation or not, in the process of availing of the loan, the petitioner would be liable by default, being a Director. Still further relying upon the judgment of the Hon ble ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arassed by taking him into custody, the courts have been conferred a special power under Section 438 Cr. P.C. But this power has to be exercised by the courts, keeping in view that there are mitigating circumstances, showing the ex facie innocence of the accused vis-a-vis the allegations leveled against him and further, that in case the accused is granted protection, the investigation of the case would not be unduly hampered. So far as the present case is concerned, the investigation of the case is already complete. The investigating officer of the case had not even considered it appropriate to arrest the petitioner during the investigation. Therefore, the investigation of the case is not going to be hampered in any manner if the petitioner is granted concession of anticipatory bail. So far as the allegations against the petitioner are concerned, this court is of the considered opinion that for the purpose of anticipatory bail, the petitioner has been able to explain his position to a considerable degree, so as to make this court exercise its power under Section 438 Cr.P.C.; for protecting him against his arrest. 11. As has come out in the fact of this case, although the petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng order issued by the Court for non-bailable offences. Therefore, the petitioner is seeking protection against his arrest; so as to appear before the trial court to face further proceedings in accordance with law. Hence, on its own facts, the present case stands on altogether a different footing. As observed above, if no active role is alleged against the petitioner in the alleged offence and if he is not required for any investigation purposes, then it would not be appropriate to leave the petitioner to be taken into custody. After all the fundamental right to life and liberty, granted by the Constitution of India, cannot be bartered for the peanuts. If the petitioner is, ultimately found guilty by the trial court, he would be very much there to suffer sentence for the same in accordance with law. But it would not be reasonable to make him suffer incarceration even before he is adjudged guilty, particularly with reference to the facts as state above. 13. Although even the counsel for the SFIO has not disputed the fact that the twin conditions, as prescribed under Section 212 (6) are not attracted in the case against the petitioner, however, keeping in view the education, antec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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