TMI Blog2023 (5) TMI 251X X X X Extracts X X X X X X X X Extracts X X X X ..... into custody, the Courts have been conferred a special power under Section 438 CrPC. But this power has to be exercised sparingly by the courts, keeping in view the 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. In the present case, the petitioner was not apprehending his arrest so far as the investigation was over. The apprehension has arisen only from the impugned order issued by the Court for non-bailable offences. 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 an altogether different footing. It is trite that grant of anticipatory bail, at the stage of investigation may frustrate the investigating agency in interrogating the accused and in collecting the useful information and also the materials which might have been concealed and grant of anticipatory bail, particularly in economic offences would definitely hamper the effective inve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8A, 58AAA, 211(7), 227, 628, 233 of Companies Act, 1956, Sections 74(3), 76A, 448, 147, 447, 448, 143, 144, 141(3)(e) of the Companies Act, 2013 and Section 120-B read with Sections 406, 417, 418, 420, 467, 468, 471, 477A, 474 of IPC, pending before the Special Judge, Gurugram. The case of prosecution is that one Mukesh Modi along with other members of his family got a Co-operative Society registered by the name of Adarsh Credit Co-operative Society Ltd. (in short, the Cooperative Society ) and that the said society collected huge amounts and after collecting these amounts floated various companies numbering more than 100 in which said Mukesh Modi or his relatives were the Directors and the Co-operative society advanced loans to the said companies which were never repaid and thus the amount collected from innocent investors was siphoned off. Learned counsel for the petitioner contended that the petitioner has never been a signatory to any Bank account, or employee or advisor of Sears Bilt P.Ltd. and has nothing to do with the said company. It is alleged that the petitioner has siphoned off Rs.30.21 crores from Adarsh Buildestate Ltd. (ABL) which was actually the funds of A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 212(6) of the Companies Act, 2013 are not attracted in the case against the petitioner. She has placed reliance on a decision of the Supreme Court in Vijay Madanlal Choudhary Ors. vs. UOI Ors. (2022) SCC Online SC 929 , wherein the Apex Court dealt with the Constitutional validity and the applicability of restrictive conditions of bail provided under Section 45 of the Prevention of Money Laundering Act, 2002 which are stated to be akin to the conditions laid down in Section 212(6) of the Companies Act, 2013. It is further urged by learned counsel for SFIO that the past conduct of the petitioner vis- -vis initiation of proclamation proceedings would also show that the petitioner deliberately avoided execution of repeated processes/warrants issued by the court and therefore, in view of the law laid down in Prem Shankar Prasad vs. State of Bihar Anr. (2021) SCC Online SC 955 , the petitioner is not entitled to the relief of anticipatory bail. Heard learned counsel for the parties and gone through the record. 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 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioner was not apprehending his arrest so far as the investigation was over. The apprehension has arisen only from the impugned order issued by the Court for non-bailable offences. 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 an altogether 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. 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. It is also to be borne in mind, while examining the reliance put by the respondent upon Vijay Madanlal Choudhary Ors. case (supra) that unlike the Companies Act, 2013, in a case of money-laundering under the PMLA Act, which is a s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 212(6) of the Companies Act, 2013 is already pending before Supreme Court, which fact is reflected from the order dated 26.10.2021 passed by the Supreme Court in the case of Vijay Shukla vs. Serious Fraud Investigation Office, SLP (Crl.) No.6338 of 2021 . In terms of the said order dated 26.10.2021 passed by the Supreme Court, the petitioner therein was granted interim protection subject to cooperating with the investigating process. It is trite that grant of anticipatory bail, at the stage of investigation may frustrate the investigating agency in interrogating the accused and in collecting the useful information and also the materials which might have been concealed and grant of anticipatory bail, particularly in economic offences would definitely hamper the effective investigation. Admittedly, the investigation of the present case is already complete and no further recovery is to be made from the petitioner. In that eventuality, it would not be justified to put the petitioner put that bars as no useful purpose would be served. As a matter of fact, if indeed, investigation is complete, the normal implication would be that there is no occasion for the investigating agency ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 04.2022 granted bail to the said accused observing that while the provisions of Section 212(6) of the Companies Act, 2013 must be borne in mind, equally, it is necessary to protect the constitutional right to an expeditious trial in a situation where a large number of accused implicated in a criminal trial would necessarily result in delay in its conclusion. The role of the appellant must be distinguishable from the role of the main accused . Another co-accused, namely, Peeyush Aggarwal also challenged the order dated 18.12.2022 vide which this Court rejected the anticipatory bail petition, before the Supreme Court in SLP(Crl.) No.12744 of 2022 which was allowed vide order dated 13.01.2023 restraining the respondent-SFIO from initiating coercive steps. The details of the co-accused released on bail, either by this Court or by the Supreme Court, are as follows:- (i) Anticipatory bail to Bharat Mardia by this Court vide order dated 15.10.2019. (ii) Regular bail to Vivek Harivyasi by the Supreme Court vide order dated 17.12.2020. (iii) Regular bail to Priyanka Modi by the Supreme Court vide order dated 07.02.2022. In view of above discussions and considering the fact ..... X X X X Extracts X X X X X X X X Extracts X X X X
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