TMI Blog2024 (3) TMI 359X X X X Extracts X X X X X X X X Extracts X X X X ..... . In RAVINDRA SAXENA VERSUS STATE OF RAJASTHAN [ 2009 (12) TMI 1063 - SUPREME COURT] , the Supreme Court reiterated that Anticipatory Bail can be granted to an accused at any time, so long as the accused has not been arrested. The High Court or the Court of Sessions cannot refuse to exercise its powers under Section 438 of the Cr.P.C. and leave the matter to the Magistrate only on the ground that the challan has now been presented. Coming to the principles that would be applicable while considering the application of the Applicant(s) for grant of Anticipatory Bail, there is no gainsay that the Applicant(s) would have to show that they have reason to believe that they may be arrested - As held by the Supreme Court in GURBAKSH SINGH SIBBIA VERSUS STATE OF PUNJAB [ 1980 (4) TMI 295 - SUPREME COURT] , the belief that the Applicant(s) may be so arrested must be founded on reasonable grounds and not on mere fear or a vague apprehension . In the present case, the applicant(s) have met the above test. The learned counsel(s) for the Applicant(s) have placed reliance on various judgments of this Court wherein the accused, who had been similarly summoned by the same Magistrate, were taken int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ereinafter referred to as the Trial Court ). As almost similar submissions have been made by the learned counsels for the Applicants, these applications are being disposed of by this common judgment. 2. The above complaint has been filed by the respondent herein under Section 439(2) read with Section 436 (1)(a), (d) and Section 436 (2) read with Section 212 (6) and Section 212(15) of the Companies Act, 2013 (hereinafter referred to as the Act ) read with Section 193 of the Cr.P.C., on which, by an Order dated 16.07.2022 passed by the learned Trial Court, the Applicant(s) herein has been summoned as an accused for offence under Sections 447 and 448 read with Sections 447, 449, 96 read with Section 99; Section 135 read with Section 450 of the Act as far as Applicants Abraham George and Mahendra Gambhir are concerned, and Sections 447 and 448 read with Section 447 of the Act as far as the Applicant Yogesh Sudhanshu is concerned. Submissions of the Learned Counsel for the Respondent: 3. The learned counsel for the respondent raised a preliminary objection on the maintainability of the present applications. He submits that as the Applicant(s) has been summoned on a complaint filed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en into custody. 8. He further submits that the grant of Anticipatory Bail to the Applicant(s) would, in fact, tantamount to an injunction against the learned Trial Court from exercising its jurisdiction under Section 212 (6) of the Act and, therefore, the present applications are liable to be dismissed. Submissions of the Learned Counsel(s) for the Applicant(s): 9. On the other hand, the learned counsel(s) for the Applicant(s), placing reliance on the judgments of the Supreme Court in Bharat Chaudhary Anr. v. State of Bihar Anr., (2003) 8 SCC 77; Ravindra Saxena v. State of Rajasthan, (2010) 1 SCC 684; and of the Division Bench of this Court in P.V. Narsimha Rao v. State (CBI), ILR (1997) I Del 507; and of the Coordinate Benches of this Court in P .V. Narsimha Rao v. State (CBI), 1997 SCC OnLine Del 19, and Deepak Anand v. State Anr. 2018 SCC OnLine Del 11875; and of the High Court of Uttrakhand in Saubhagya Bhagat v. State of Uttarakhand Anr., (Judgment dated 24.08.2023 passed in Anticipatory Bail Application No. 76/2021) submit that, merely because a complaint/charge-sheet has been filed, it cannot be said that an application under Section 438 of the Cr.P.C. will no longer be ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14. They further submit that there are no allegations of the Applicant(s) being a flight risk or likely to tamper with evidence or influence witnesses. 15. The learned counsel for the Applicant in Bail Appln. 3739/2022-Sh. Yogesh Sudhanshu Kumar further submits that the Applicant has joined the investigation, the trial is likely to take long, the Applicant has clean antecedents, is a senior citizen and is a resident of Pune, Maharashtra, having multiple ailments. He submits that the Applicant was granted interim protection vide Order dated 15.12.2022. There is no allegation of him misusing the relief so granted by this Court. He submits that the material allegations in the complaint pertain to period after the Applicant had resigned. ANALYSIS FINDINDS: 16. I have considered the submissions made by the learned counsels for the parties. 17. The provision as to the grant of Bail in cases of non-bailable offences are contained in Sections 437, 438 and 439 of the Cr.P.C. The said provisions are reproduced hereinbelow: 437. When bail may be taken in case of non-bailable offence . (1) When any person accused of, or suspected of, the commission of any non-bailable offence is arrested or d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code (45 of 1860) or abatement of, or conspiracy or attempt to commit, any such offence, is released on bail under sub-section (1), the Court shall impose the conditions, (a) that such person shall attend in accordance with the conditions of the bond executed under this Chapter, (b) that such person shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected, and (c) that such person shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence, and may also impose, in the interests of justice, such other conditions as it considers necessary. (4) An officer or a Court releasing any person on bail under sub-section (1) or sub-section (2), shall record in writing his or its reasons or special reasons for so doing. (5) Any Court which has released a person on bail under sub-section (1) or sub-secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice, together with a copy of such order to be served on the Public Prosecutor and the Superintendent of Police, with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the Court. (1B) The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the Court, if on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice. (2) When the High Court or the Court of Session makes a direction under sub-section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may thinks fit, including (i) a condition that the person shall make himself available for interrogation by a police officer as and when required; (ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer; (iii) a condition that the person shall not leave India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for bail to the person under sub-section (3) of section 376 or section 376AB or section 376DA or section DB of the Indian Penal Code (45 of 1860). (2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody. 18. Section 437 and Section 439 of the Cr.P.C. relate to grant of Bail to any person who has been arrested or is in custody . Section 438 of the Cr.P.C., on the other hand, gives a power to the Court to grant Anticipatory Bail to a person who is yet to be arrested or taken into custody . Explaining the powers under Section 438 of the Cr.P.C., so far as is relevant to the present controversy, the Supreme Court in Gurbaksh Singh Sibbia (Supra) has held as under: 7. The facility which Section 438 affords is generally referred to as anticipatory bail , an expression which was used by the Law Commission in its 41st Report. Neither the section nor its marginal note so describes it but, the expression anticipatory bail is a convenient mode of conveying that it is possible to apply for bail in anticipation of arrest. Any order of bail can, of course, be effective only from the time of arrest beca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enerally to be cut down so as to read into the language of the statute restraints and conditions which the legislature itself did not think it proper or necessary to impose. This is especially true when the statutory provision which falls for consideration is designed to secure a valuable right like the right to personal freedom and involves the application of a presumption as salutary and deep grained in our criminal jurisprudence as the presumption of innocence. Though the right to apply for anticipatory bail was conferred for the first time by Section 438, while enacting that provision the legislature was not writing on a clean slate in the sense of taking an unprecedented step, insofar as the right to apply for bail is concerned. It had before it two cognate provisions of the Code : Section 437 which deals with the power of courts other than the Court of Session and the High Court to grant bail in non-bailable cases and Section 439 which deals with the special powers of the High Court and the Court of Session regarding bail. The whole of Section 437 is riddled and hedged in by restrictions on the power of certain courts to grant bail . The provisions of Sections 437 and 439 fur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but words, as wide and explicit as have been used in Section 438, must be given their full effect, especially when to refuse to do so will result in undue impairment of the freedom of the individual and the presumption of innocence. It has to be borne in mind that anticipatory bail is sought when there is a mere apprehension of arrest on the accusation that the applicant has committed a non-bailable offence. A person who has yet to lose his freedom by being arrested asks for freedom in the event of arrest. That is the stage at which it is imperative to protect his freedom, insofar as one may, and to give full play to the presumption that he is innocent. In fact, the stage at which anticipatory bail if generally sought brings about its striking dissimilarity with the situation in which a person who is arrested for the commission of a non-bailable offence asks for bail. In the latter situation, adequate data is available to the court, or can be called for by it, in the light of which it can grant or refuse relief and while granting it, modify it by the imposition of all or any of the conditions mentioned in Section 437. 13. This is not to say that anticipatory bail, if granted, must ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... belief that the applicant may be so arrested must be founded on reasonable grounds. Mere fear is not belief , for which reason it is not enough for the applicant to show that he has some sort of a vague apprehension that some one is going to make an accusation against him, in pursuance of which he may be arrested. The grounds on which the belief of the applicant is based that he may be arrested for a non-bailable offence, must be capable of being examined by the court objectively because it is then alone that the court can determine whether the applicant has reason to believe that he may be so arrested. Section 438(1), therefore, cannot be invoked on the basis of vague and general allegations, as if to arm oneself in perpetuity against a possible arrest. Otherwise, the number of applications for anticipatory bail will be as large as, at any rate, the adult populace. Anticipatory bail is a device to secure the individual s liberty; it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations, likely or unlikely. 36. Secondly, if an application for anticipatory bail is made to the High Court or the Court of Session it must apply its own ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the complaint or the investigating agency has filed a charge-sheet, would not by itself, in our opinion, prevent the courts concerned from granting anticipatory bail in appropriate cases. The gravity of the offence is an important factor to be taken into consideration while granting such anticipatory bail so also the need for custodial interrogation, but these are only factors that must be borne in mind by the courts concerned while entertaining a petition for grant of anticipatory bail and the fact of taking cognizance or filing of a charge-sheet cannot by itself be construed as a prohibition against the grant of anticipatory bail. In our opinion, the courts i.e. the Court of Session, High Court or this Court has the necessary power vested in them to grant anticipatory bail in non-bailable offences under Section 438 of CrPC even when cognizance is taken or a charge-sheet is filed provided the facts of the case require the court to do so. xxxx 10. From the above observations, we are unable to read any restriction on the power of the courts empowered to grant anticipatory bail under Section 438 of CrPC. 11. We respectfully agree with the observations of this Court in the said ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ic Prosecutor, argues that the present application would not be maintainable in view of the fact that the Court has itself not chosen to issue a warrant of arrest; instead the learned Special Judge has issued a process in the form of summons to secure the appearance of the petitioner. Hence it cannot be called by any stretch of imagination that there is an apprehension of arrest. While putting forward the said contention the learned Public Prosecutor is oblivious of the fact that a charge sheet has already been filed before the learned Special Judge against the petitioners. They have been summoned to appear before the Court. Thus can it be said in the above circumstances that there is no apprehension in the mind of the accused persons that they would not be arrested? We feel the apprehension in the above circumstances is very much genuine and real and not a figment of the imagination of the petitioners. The petitioners admittedly have been accused of committing of a cognizable offence. Thus they can be arrested at any time by any officer of the police. They can also be arrested at the instance of the Court. Section 438(3) Cr.P.C. contemplates such a situation and provides for such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Narsimha Rao v. State (CBI), 1997 SCC OnLine Del 19 had answered a reference on precisely the same question of law contrary to what is being canvassed by the petitioner. Pertinent to note that in that case also the petitioner had come up to this Court for grant of anticipatory bail in the wake of summons issued by court of Magistrate against him. The division bench, answering the reference made by a learned single judge had, inter alia, observed that a person against whom accusations of cognizable and non-bailable offence have been made may apprehend arrest by the police or arrest even at the hands of the court. It was noted that the language used in Section 438 Cr. P.C. is clear and unambiguous namely reason to believe that he may be arrested on accusation . The court while considering the prayer under Section 438 Cr. P.C. goes by the merits of the case and not by the nature of order passed by the Magistrate choosing to summon the accused through bailable or non-bailable warrant. It was also noted that Section 438(3) Cr. P.C. contemplates a situation where the arrest may be apprehended at the instance of the court and, thus, mandates that if such order of cognizance is passed an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 438 of the Cr.P.C. would be available even where the charge-sheet has been filed or cognizance on a complaint has been taken by the Magistrate. 27. Coming to the principles that would be applicable while considering the application of the Applicant(s) for grant of Anticipatory Bail, there is no gainsay that the Applicant(s) would have to show that they have reason to believe that they may be arrested. As held by the Supreme Court in Gurbaksh Singh Sibbia (Supra), the belief that the Applicant(s) may be so arrested must be founded on reasonable grounds and not on mere fear or a vague apprehension . In the present case, in my view, the applicant(s) have met the above test. The learned counsel(s) for the Applicant(s) have placed reliance on various judgments of this Court wherein the accused, who had been similarly summoned by the same Magistrate, were taken into custody and had to suffer the ignominy of being in jail for a long period of time before they were granted Bail by this Court. 28. As has been held by this Court in P.V. Narsimha Rao (Supra) and Deepak Anand (Supra), merely because summons have been issued to the Applicant(s), it cannot be said that there is no reaso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and this is why they seek protection. We must keep this in mind while deciding the fate of these appeals. 11. In the case of the prime accused, namely Shri Mahdoom Bava, an additional argument advanced by the learned Additional Solicitor General is that he was involved in eleven other cases. But the tabulation of those eleven cases would show that seven out of those eleven cases are complaints under Section 138 of the Negotiable Instruments Act, 1881 and three out of those seven cases are actually inter-parties and not at the instance of the Bank. The eighth case is a complaint filed by the Income Tax Officer and it relates to the non-payment of TDS amount. The remaining three cases are the cases filed by CBI, one of which is the subject matter out of which the above appeals arise. 31. In Sundeep Kumar Bafna (Supra), the Court was, in fact, considering the powers of the High Court and the Court of Sessions under Section 439 of the Cr.P.C.. The same would have no relevance to the facts of the present case. 32. The submission of the learned counsel for the respondent that an Order granting Anticipatory Bail would, in fact, amount to an injunction against the learned Trial Court exe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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