Bombay High Court
Bindu Rana Kapoor vs Union Of India And Anr on 12 January, 2023
Author: M. S. Karnik
Bench: M. S. Karnik
Darshan Patil 917-aba-478-22.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
ANTICIPATORY BAIL APPLICATION NO. 478 OF 2022
Bindu Rana Kapoor ..Applicant
VS.
Union of India and Anr. ..Respondent
Mr. Abad Ponda, Sr. Advocate a/w Adv. Aditya Mithe, Adv
Siya Chaudhary, Adv. Sachine R. Agawane i/b Aditya Mane
for the Applicant.
Mr. H.S. Venegavkar, for the Respondent no. 1.
Ms. A. A. Takalkar, APP for the State.
CORAM : M. S. KARNIK, J.
DATE : JANUARY 12, 2023
P.C. :
1. Heard learned counsel for the applicant and learned
APP for the State.
2. This is an application for pre-arrest bail. The applicant
is apprehending arrest in connection with Special CBI Case
No. 1233 of 2021 filed by C.B.I. on 08/10/2021, for the
offence punishable under sections 11, 12 and 13(2) read
with 13(1)(d) of the Prevention of Corruption Act, 1988 and
under section 120-B and 420 of the Indian Penal Code,
1860.
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3. While granting interim protection to the applicant by
order dated 23/02/2022, this Court observed thus:
"4. Very briefly, on merits, the case of C.B.I. appears
to be that the main accused Rana Kapoor had
extended various monetary benefits in the form of
credit facility to one Gautam Thapar's company
which had a property in the prime locality of Amrita
Shergill Marg, New Delihi. That property was initially
mortgaged with Yes Bank. Subsequently, that
property was purchased by M/s. Bliss Abode Pvt. Ltd.,
of which the present applicant was a Director. She is
wife of the main accused Rana Kapoor. The
allegations are that, by entering into this transaction,
undue advantage was given by Yes Bank to Gautam
Thapar. Rana Kapoor, through the applicant's
company had obtained this prime property for much
lesser price of around Rs.378 crores than it's actual
price. The actual price was more than Rs.600 crores.
Basic allegations are that, there was conflict of
interest as Rana Kapoor was controlling the Yes Bank
and he used Yes Bank to purchase that property for
the company of which the present applicant was a
Director.
5. The investigation was carried out and the charge-
sheet was filed on 08/10/2021. Learned Special
Judge, C.B.I.-Greater Mumbai, issued summons to the
accused persons including the present applicant for
appearance. She appeared through her counsel on
27/10/2021 and claimed personal exemption, which
was granted by that court. On the next date i.e. on
11/11/2021, the applicant again appeared through
her counsel and claimed personal exemption which
was also granted by the court. After that she filed an
application for anticipatory bail before the same
court. It was her case that, she apprehended her
arrest because in the past in a similar case when she
had appeared in response to the summons, she was
taken in custody. Learned trial Judge extensively
heard her anticipatory bail application and passed
the impugned order below Exh. 14 in Special Case
No. 1233 of 2021 on 18/02/2022. It is specifically
held that the anticipatory bail application was not
maintainable.
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6. Learned Judge relied on the observations in the
case of Ramesh son of Markin Vs. State through DY.
RFO., Criminal Petition No. 9975/2021, decided by
Karnataka High Court on 21/01/2022. While giving
reasons, he had observed that, since the applicant
had appeared through her counsel, as per Ramesh's
case (supra) the contention that the accused's
appearance through advocate would not amount to
custody was not acceptable. That was one of the
reasons why the application was not maintainable.
7. The other reason given by the learned Judge was
regarding the apprehension expressed by the
applicant that, if she preferred regular bail
application, it could be rejected by that court and she
could be taken into custody. According to the learned
Judge, that apprehension cannot be said to be within
the ambit of Section 438 of Cr.p.c.
8. Shri. Ponda, learned senior counsel for the
applicant submitted that, in another case when the
applicant had appeared before the court in response
to the summons, she was taken in custody and she
was in jail for about 21 days. She was released on
bail by the Hon'ble Supreme Court. Therefore, his
apprehension is not without foundation. He secondly
attacked the other reason of the learned Judge that,
if the applicant appeared through her counsel, then
anticipatory bail application is not maintainable.
According to Shri. Ponda, this reason is also not in
accordance with the law. Learned Judge has
reproduced the allegations against the applicant, but
has not given his finding on merits and he has
rejected the application on maintainability of the
application itself.
9. Shri. Ponda submitted that the allegations are
against the main accused Rana Kapoor and on the
date when the transaction was completed and during
the period of conspiracy, the applicant was abroad
and she is roped in only because she is wife of the
main accused. He submitted that, during
investigation, the C.B.I. did not find it necessary to
arrest the applicant, therefore, there was no propriety
in taking her into custody after the charge-sheet is
filed and at the stage of issuance of summons."
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4. So far as one of the accused- Gautam Thapar is
concerned, Bail Application No. 51 of 2022 was filed in this
Court. The same was allowed vide order dated 25/03/2022.
The prosecution case is briefly set out in the said order. This
Court while granting bail to the co-accused- Gautam Thapar
observed thus:
"3. The CBI has registered FIR No.
RC.BA1/2020/A0004-CBI/ACB/Mumbai against the
aforesaid Applicant and the other co-accused for
offences punishable under sections 120(B) r/w. 420 of
the Indian Penal Code and sections 7, 11 and 12 of
the Prevention of Corruption Act, 1988. The
allegations against the Applicant and the co-accused
inter alia are that the Applicant, Promoter of AG
companies and the co-accused - Rana Kapoor, the
Managing Director and CEO of Yes Bank Ltd, his wife -
Smt. Bindu Rana Kapoor, Director of M/s. Bliss Abode
Pvt. Ltd. had entered into a criminal conspiracy to
divert the sale proceeds of the property mortgaged
with Yes Bank and to cheat the bank for the purpose
of obtaining above illegal gratification. It is alleged
that Rana Kapoor had obtained illegal gratification in
the form of a property in the prime location in New
Delhi at much less than the realizable market value.
There was principal outstanding of Rs.350 crores to
ICICI Bank and Rs.30 crores to DCB Bank against
charge of above property in New Delhi. It is alleged
that as a part of the conspiracy, Yes Bank sanctioned
loan of Rs.400 Crores to M/s. Avantha Reality Ltd.
(ARL) as Lease Rental Discounting (LRD) for a period
of 10 years. It is alleged that it was essentially a
sham agreement entered into with an intention to
defraud and cheat Yes Bank Ltd. As a part of
conspiracy, Rana Kapoor extended various
concessions, relaxations and waivers to various AG
companies promoted by the Applicant and thereby
obtained illegal gratification to the tune of Rs.307
Crores by acquiring an expensive property at Rs.378
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Crores against the declined value of Rs.685 Crores.
4. The records indicate that the Applicant was
served with the notice whereupon the Applicant
appeared before the Investigating Agency and he
was interrogated and upon completion of the
investigation, charge sheet came to be filed on
08/10/2020. On receipt of the summons, the
Applicant appeared before the Court and sought bail.
The Bail Application has been dismissed mainly on
the ground that the Applicant is involved in
committing economic offence and the fact that he
has repaid the outstanding amount, is not sufficient
to wipe out the criminal liability.
5. Mr. Mahesh Jethmalani, learned Senior counsel
for the Applicant has relied upon the decision of the
Apex Court in Satender Kumar Antil v/s. CBI and anr.
2021 SCC OnLine SC 922 and has also relied upon
the order dated 16/12/2021 in Miscellaneous
Application Diary No(s).29164/2021 in SLP(Crl)
No.5191/2021, wherein the Hon'ble Supreme Court
has laid down guidelines for grant of bail after filing
of the charge sheet in different categories/types of
offences. Economic offences not covered by Special
Act, are classified under category 'D' and it was held
that in such cases on appearance of the accused in
Court pursuant to the process issued, bail application
to be decided on merits.
6. In subsequent order dated 16/12/2021, the
Apex Court has clarified that " if during the course of
investigation, there has been no cause to arrest the
accused, merely because a charge sheet is filed,
would not be an ipso facto cause to arrest the
petitioner, an aspect in general clarified by us in
Criminal Appeal No.838/2021 in Siddharth v/s. State
of Uttar Pradesh and anr. dated 16.08.2021 . "
7. In the instant case, as noted above, the FIR was
registered on 12/03/2020. The Applicant has reported
to the Investigating Officer as and when called and
co-operated throughout in the Investigation. Upon
completion of the investigation, charge sheet has
been filed on 08/10/2021. The Investigating Officer
did not find it necessary to arrest the accused during
the course of investigation. Hence, in terms of the
clarification given by the Hon'ble Supreme Court, it is
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not necessary to detain the Applicant in custody
pending trial, particularly considering the fact that
the trial is not likely to conclude in near future, in
view of large pendency of cases.
8. Under the circumstances and in view of
discussion supra, the Applicant is entitled for bail.
Hence, the Bail Application is allowed on following
terms and conditions :-
(i) The Applicant who is facing trial in Special Case
No.101233 of 2021 pending on the file of Special
Judge (CBI), Greater Bombay, is ordered to be
released on bail on furnishing PR bond in the sum of
Rs. 2,00,000/- (Rupees Two Lakhs only) with one or
two solvent sureties in the like amount.
(ii) The Applicant shall report to CBI, ACB, Mumbai
once in a month on every 1st Saturday between
11.00 a.m. to 02.00 p.m. until further orders;
(iii) The Applicant shall not interfere with the
complainant and/or shall not tamper with the
evidence or attempt to influence or contact the
complainant, witnesses or any person concerned with
the case, in any manner ;
(iv) The Applicant shall keep the Trial Court informed
of his current address and mobile contact number
and/or change of residence or mobile details, if any,
from time to time.
(v) The Applicant shall co-operate with the conduct of
the trial and attend the trial Court on all dates, unless
exempted.
(vi) The Applicant shall not leave the Country without
prior permission of the Court.
9. Bail Application stands disposed of in above
terms."
5. Shri Venegaonkar for the respondent no. 1 submitted
that no doubt the investigation is complete and the charge
sheet is filed, however, the present application for
anticipatory bail is not maintainable and the applicant has
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to file a regular bail application before the C.B.I. Special
Court just as the co-accused Gautam Thapar did.
6. To counter this objection, my attention is invited by
learned Senior Advocate for the applicant to the decision of
the Hon'ble Supreme Court in the case of Bharat
Chaudhary Vs. State of Bihar1. The Hon'ble Supreme
Court considered factors which have to be taken into
consideration for the granting of anticipatory bail. It is
further held that the mere fact of taking cognizance or filing
of the charge-sheet cannot by itself be construed as a
prohibition against the grant of anticipatory bail. Relevant
portions from paragraph nos. 6 to 10 reads thus:
"6. We do not think that was the intention of the
legislature when it incorporated Section 438 in CrPC
which reads thus:
"438. (1) When any person has reason to
believe that he may be arrested on an
accusation of having committed a non-bailable
offence, he may apply to the High Court or the
Court of Session for a direction under this
section; and that Court may, it it thinks fit,
direct that in the event of such arrest, he shall
be released on bail."
7. From the perusal of this part of Section 438 of
CrPC, we find no restriction in regard to exercise of
this power in a suitable case either by the Court of
Session, High Court or this Court even when
cognizance is taken or a charge-sheet is filed. The
1 (2003) 8 Supreme Court Cases 77
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object of Section 438 is to prevent undue harassment
of the accused persons by the pre-trial arrest and
detention. The fact, that a court has either taken
cognizance 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.
8. The learned counsel, as stated abvoe, has
relied on the judgment of this Court referred to
hereinabove. In that case i.e. namely Salauddin
Abdulsamad Shaikh1 a three-Judge Bench of this
Court stated thus: (SCC p. 668, paras 2 & 3)
When the Court of Session or the High Court is
granting anticipatory bail, it is granted at a stage
when the investigation is incomplete and, therefore,
it is not informed about the nature of evidence
against the alleged offender. It is, therefore,
necessary that such anticipatory bail orders should
be of a limited duration only and ordinarily on the
expiry of that duration or extended duration, the
court granting anticipatory bail should leave it to the
regular court to deal with the matter on an
appreciation of evidence placed before it after the
investigation has made progress or the charge-sheet
is submitted.
Ordinarily the court granting anticipatory bail
should not substitute itself for the original court
which is expected to deal with the offence. It is that
court which has then to consider whether, having
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regard to the material placed before it, the accused
person is entitled to bail.
9. From a careful reading of the said judgment we
do not find any restriction or absolute bar on the
court concerned granting anticipatory bail even in
cases where either cognizance has been taken or a
charge-sheet has been filed. This judgment only lays
down a guideline that while considering the prima
facie case against an accused the factum of
cognizance having been taken and the laying of a
charge-sheet would be of some assistance for coming
to the conclusion whether the claimant for
anticipatory bail is entitled to such bail or not. This is
clear form the following observations of the Court in
the above case: (SCC p. 668, para 2)
"It is, therefore, necessary that such anticipatory
bail orders should be of a limited duration only and
ordinarily on the expiry of that duration or extended
duration the court granting anticipatory bail should
leave it to the regular court to deal with the matter
on an appreciation of evidence placed before it after
the investigation has made progress or the charge-
sheet is submitted."
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."
(emphasis mine)
7. In the present case, the investigation is complete and
the charge-sheet has been filed. The co-accused- Gautam
Thapar who is facing more serious accusations than the
applicant and who is alleged to have conspired with the
husband (Rana Kapoor) of the applicant, has been granted
bail by this court on 25/03/2022, the relevant portion of the
order is reproduced hereinbefore. The applicant is the wife
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of the main accused. The applicant's case so far as the
manner in which the investigation proceeded is similar to
that of co-accused- Gautam Thapar, except that the
applicant filed an Anticipatory Bail Application post
investigation and filing of charge-sheet, whereas Gautam
Thapar filed a regular bail application. The applicant, in my
opinion, should not be deprived the facility of anticipatory
bail particularly in the light of what has been laid down by
Their Lordships in the case of Bharat Chaudhary (supra),
also considering that 'Gautam Thapar' has been released on
bail. In this view of the matter, the present application can
be allowed. The applicant has been granted interim
protection on 23/02/2022 by this Court. The applicant co-
operated with the investigation. The investigation is
complete and the charge-sheet has been filed. The
Investigating Officer did not find it necessary to arrest the
applicant. Interim protection granted by this court by order
dated 23/02/2022, therefore, deserves to be confirmed and
is accordingly confirmed. The application is allowed in the
following terms.
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ORDER
(a) In the event of arrest of the applicant in connection with Special CBI Case No. 1233 of 2021 filed by C.B.I. on 08/10/2021, the applicant- Bindu Rana Kapoor, be released on bail on her furnishing P.R. Bond in the sum of Rs.30,000/- with one or more sureties in the like amount;
(b) The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with facts of case so as to dissuade him from disclosing the facts to Court or any Police Officer and should not tamper with evidence;
(c) The applicant shall regularly attend the trial;
(d) The applicant shall not leave India without prior permission of the Special Court.
8. The application is disposed of.
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