Karnataka High Court
Unilever Industries Private Limited vs State Of Karnataka By Kadugodi Police ... on 19 June, 2024
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MRS.JUSTICE M.G. UMA
CRIMINAL PETITION NO.4394/2024
BETWEEN:
UNILEVER INDUSTRIES PRIVATE LIMITED
A COMPANY INCORPORATED UNDER THE
COMPANIES ACT, 1956 HAVING ITS
REGISTERED OFFICE AT UNILEVER HOUSE,
B.D. SAWANT MARG, CHAKALA,
ANDHERI (E), MUMBAI,
MAHARASHTRA - 400 099
AND AT TOWER A, THE BUSINESS
PRECINCT, PRESTIGE SHANTINIKETAN,
WHITEFIELD MAIN ROAD,
BANGALORE - 560 048
THROUGH ITS AUTHORISED REPRESENTATIVE
MR. VIVIAN CHACKO,
AGED ABOUT 35 YEARS
ITS LEGAL CONSULTANT, HAVING HIS
OFFICES AT TOWER A, THE BUSINESS
PRECINCT, PRESTIGE SHANTINIKETAN,
WHITEFIELD MAIN ROAD,
BANGALORE - 560 048
... PETITIONER
(BY SRI: HASMATH PASHA, SR. ADVOCATE FOR
SRI: AHAAN MOHAN, ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY KADUGODI POLICE STATION,
BENGALURU
REPRESENTED BY PP,
HIGH COURT BUILDING,
BENGALURU - 560 001
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2. SEEMA VINOCHA NARAYAN
WIFE OF VIJAY ANANT NARAYAN,
AGED ABOUT 46 YEARS,
RESIDING AT VILLA NO.145,
ADARSHA VISTA, BASRA NAGAR
MAIN ROAD, VIBHUTIPURA,
MARATHAHALLI, BENGALURU - 560 037
3. VIJAY ANANT NARAYAN
AGED ABOUT 45 YEARS,
RESIDING AT VILLA NO.145,
ADARSHA VISTA, BASRA NAGAR
MAIN ROAD, VIBHUTIPURA,
MARATHAHALLI, BENGALURU - 560 037
... RESPONDENTS
(BY SMT: WAHEEDHA .M.M., HCGP FOR R1
SRI: SANDESH J. CHOUTA, SR. ADVOCATE FOR
SRI: JAYSHAM JAYASIMHA RAO, ADVOCATE FOR R2 & R3)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 439(2)
OF CR.P.C. PRAYING TO A. CANCEL THE ANTICIPATORY BAIL BY
SETTING ASIDE THE IMPUGNED ORDER DATED 08.05.2024 AT
ANNEXURE-A GRANTED TO THE RESPONDENT NO.2 SEEMA
VINOCHA NARAYANA AND RESPONDENT NO.3 VIJAYA NANT
NARAYAN PASSED BY THE VI ADDITIONAL DISTRICT AND
SESSIONS JUDGE, BENGALURU RURAL IN ANTICIPATORY BAIL
APPLICATION NUMBERED CRL.MISC.NO.961/2024.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 10.06.2024 COMING ON FOR
PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT PASSED THE
FOLLOWING:
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ORDER
The petitioner is before this Court seeking cancellation of bail granted in favour of respondent Nos.2 and 3 vide order dated 08.05.2024 passed in Crl.Misc.Nos.961/2024 by the learned VI Additional District and Sessions Judge, Bengaluru Rural District, Bengaluru in Crime No.215/2024 of Kadugodi Police Station.
2. Heard Sri Hashmath Pasha, learned Senior Advocate for Sri Ahaan Mohan, learned counsel for the petitioner, Smt. Waheedha M.M., learned High Court Government Pleader for respondent No.1, Sri Sandesh J. Chouta, learned Senior Advocate for Sri Jaysham Jayasimha Rao, learned counsel for respondent Nos.2 and 3. Perused the materials on record.
3. Learned Senior Advocate for the petitioner contended that the petitioner is an International Company having its dealings globally. Respondent Nos.2 and 3 are arrayed as accused Nos.1 and 2 in the above said case. They are charged for the offences punishable under Sections 406, 408, 417, 419, 420 r/w Section 34 of IPC. Serious allegation 4 of embezzlement of morethan 54 crores is made. Accused No.1 is the main accused who joined the Company as Manager during 2015. She gradually progressed her growth and during 2020, she was promoted as Director (Software Development). Since accused No.1 had gained confidence of the informant- Company, she took charge of developing the software and introduced a Company by name DAN Technology Solutions Private Limited (hereinafter referred to as 'DAN' for brevity) and recommended to have dealings with it. In fact, it is a sham Company. Accused No.3 is said to be the owner of the said Company who is none other than the Ex-colleague of accused No.1. Accused No.2 is the husband of accused No.1. Accused Nos.4 and 5 are mother and wife of accused No.3. All the accused in collusion with one another, systematically cheated the informant- complainant. As per the estimate made by the petitioner, about 54.62 crores was credited in the name of DAN between 16.08.2017 till 22.12.2023. Since the petitioner-Company is an International Company, the amount was credited in pounds. But unfortunately, no software service was rendered by DAN.
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4. Learned Senior Advocate submitted that on 05.12.2023, a mail was received by the petitioner by a Whistal Blower informing that no Company is in existence by name DAN Technology Solutions Private Limited and no services is being rendered by it. An internal enquiry by the Committee of the Officials was held and accused No.1 was called upon to appear before the Committee. She appeared and during internal enquiry, she confessed about the fraud committed by her in active collusion with other accused. She also confessed regarding the receipt of morethan 1 crore per year as kickbacks from DAN either to her account, to the account of accused No.2, to the account of her son, in the names of accused Nos.4 and 5, etc. Even the account of the minor son of accused No.1 showed the credit of more than Rs.8 crores and similarly, the account of accused Nos.3 to 5 and the daughter of accused No.3 was found credited with about Rs.6.41 crores, which is nothing but the kickback received from out of the amount that was transferred by the petitioner- Company under the bona-fide impression that DAN is providing software services as per the impression created by accused No.1. The remaining amount which the petitioner- 6 Company transferred is to be traced, for which, custodial interrogation of respondent Nos.2 and 3 is very much necessary.
5. Learned Senior Advocate further submitted that Annexure- R4 - the mail dated 02.06.2017 produced by respondent No.2 along with the statement of objection is a fabricated document deleting her name in the mail. The rejoinder filed by the petitioner discloses that such mail was in fact sent to accused No.1 by placing the purchase order and the same was tampered by the accused deliberately to show that they are innocent and have no role to play in the matter. The petitioner- Company is making hard efforts to find out all other e-mails and other soft documents, but however, recently, it is found that such e-mails and soft documents are either tampered or deleted. The devices were formatted. However, when the enquiry was held by the internal committee, accused No.1 appeared before it and gave her confession statement in writing categorically admitting that she is responsible for the fraud and misappropriation. She also admitted that she has received about 30 plus crores by way of kickbacks. All these amount is to be traced by 7 subjecting the accused for interrogation. But however, the learned Sessions Judge granted anticipatory bail to respondent Nos.2 and 3 casually without application of mind and without taking into consideration the seriousness of the offence.
6. He places reliance on the decision of the Hon'ble Apex Court in Pratibha Manchanda and Ors. Vs. State of Haryana & Ors.1 in support of his contention that in a case where such serious allegation of fraud, misappropriation and cheating were alleged and anticipatory bail was granted by the High Court, the same was cancelled. The confession statement which is in the handwriting of accused No.1 is to be confronted to her during interrogation. The interest of the petitioner- Company is to be safeguarded to protect public money. When respondent Nos.2 and 3 are armed with protection of the Court by way of anticipatory bail, no effective investigation could be carried out to unearth the truth and to trace the proceeds involved in the matter. Therefore, the order granting anticipatory bail in favour of respondent Nos.2 and 3 is nothing but perverse, illegal and 1 (2023) 8 SCC 181 8 without application of mind. The order was passed mechanically without highlighting the seriousness of the offence.
7. Learned Senior Advocate further submitted that even though the case was registered in Kadugodi police station, no progress could be made for the reasons best known to the police and therefore, now recently the investigation is taken over by the CID. Therefore, he prays for allowing the petition by canceling the anticipatory bail granted.
8. Per contra, learned Senior Advocate for respondent Nos.2 and 3 opposing the petition submitted that the petitioner is challenging the order granting anticipatory bail and seeking cancellation of bail. The offence under Sections 417 and 419 of IPC are bailable in nature. Even though the offence under Sections 406, 408 and 420 of IPC are non-bailable, they are punishable with less than seven years imprisonment and triable by the Magistrate. 9
9. He places reliance on the decision of the Hon'ble Apex Court in Gurbaksh Singh Sibbia Vs. State of Punjab2 in support of his contention that even after the anticipatory bail is granted, the same will not take away the right of the police to investigate into the charges made against the person grated with the order of anticipatory bail. It is a simple criminal complaint filed alleging commission of the offence as stated above. The learned Sessions judge, considering the materials on record and finding that accused No.1 being a lady, who is entitled to be treated with all sensitivity as provided under Section 437 of Cr.PC, granted anticipatory bail.
10. Learned Senior Advocate places reliance on the decision of the Hon'ble Apex Court in Satender Kumar Antil Vs. CBI3 to contend that the Hon'ble Apex Court has laid down guidelines by categorizing the types of offences as A, B, C and D category. In category A, the offence punishable with imprisonment with seven years or less are taken into consideration and the Court has specifically referred to Section 41 in Chapter V of Cr.PC to hold that when an offence 2 (1980) 2 SCC 565 3 (2022) 10 SCC 51 10 is punishable with imprisonment of seven years or less, a police notice as required under law could be served on the accused calling upon him to appear before the Investigating Officer. He can also seek issuance of warrant against the accused, if he fails to appear before the Court. Apart from the guidelines issued by the Hon'ble Apex Court in Arnesh Kumar Vs. State of Bihar4, reiterating the same held that the proviso to Section 437 of the Code mandates that when the accused is a women, same is to be taken note of and the case pertaining to her is to be considered with some sensitivity. Learned Senior Advocate submitted that even in a case of economic offence not covered under any special enactment, which falls under category D, it is categorically held that such offences cannot be classified as such, even though it may involve various activities and may differ from one case to another. Therefore, it is held that it is not advisable to deny bail in each and every case, but it referred to the decision in P. Chidambaram Vs. Directorate of Enforcement5, where the gravity of the offence is to be 4 (2014) 8 SCC 273 5 (2020) 13 SCC 791 11 considered from the facts and circumstances of each case by the Courts while considering the bail application.
11. Learned Senior Advocate also places reliance on the decision of the Hon'ble Apex Court in Sushila Aggarwal & Ors. Vs. State (NCT of Delhi) & Anr.6 to contend that the Court has taken into consideration the conditions suggested by the Constitution Bench in Gurbaksh Singh Sibbia (supra) as highlighted in the judgment which will take care of the interest of the accused. Even when prima-facie case is made out and when the accused is not required for custodial interrogation, he is entitled for bail. The learned Sessions Judge considered all aspects of the matter and allowed the petition filed by respondent Nos.2 and 3. There is no illegality or perversity in the said order.
12. Learned Senior Advocate also places reliance on the decision in Myakala Dharmarajam & Ors. Vs. State of Telangana & Anr.7 to highlight that the Court has once again reiterated the dictum laid down in Raghubir Singh Vs. State 6 (2020) 5 SCC 7 (2020) 2 SCC 743 12 of Bihar8 as to when the bail can be cancelled. It is only when; (i) the accused misuses his liberty by indulging in similar criminal activity, (ii) interferes with the course of the investigation, (iii) attempts to tamper with evidence or witnesses, (iv) threatens witnesses or indulges in similar activities, which would hamper smooth investigation (v) there is likelihood of his fleeing to another country (vi) attempts to make himself scare by going underground or becoming unavailable to the investigating agency (vii) attempts to place himself beyond the reach of his surety, under such circumstances, the anticipatory bail once granted could be cancelled. But in the present case, no such grounds are made out. He further submits that, it is the settled position that when once the bail is granted, unless there is some serious infirmity resulting in miscarriage of justice or if the Court ignored all the relevant materials indicating prima-facie involvement of the accused, then only, the Court can take such harsh decision of canceling the bail and not otherwise.
13. Learned Senior Advocate submitted that the present complaint came to be filed on 21.04.2024. 8 (1986) 4 SCC 481 13 Respondent Nos.2 and 3 have sought for grant of anticipatory bail on 29.04.2024. But the notice under Section 41(a) was issued by the Investigating Officer only on 07.05.2024 asking them to appear before him on 08.05.2024, but on 08.05.2024, the order of anticipatory bail was granted by the learned Sessions Judge. However, all the conditions imposed while granting anticipatory bail were complied by the respondents and at least on four occasions, respondent Nos.2 and 3 have appeared before the Investigating Officer. They have deposited their passport and also marking their attendance before the Investigating Officer as directed. Hence, no conditions imposed by the learned Sessions Judge was violated. There is no allegation of interference with the investigation and the order passed is a well reasoned order. Same cannot be termed as perverse. The petitioner had appeared before the learned Sessions Judge and an opportunity of being heard was provided before passing the order in question. Under such circumstances, there are no reasons to allow the petition.
14. Leaned Senior Advocate submitted that there are at least five superior officers above accused No.1, even 14 though she is referred to as Director. A separate Board of Directors is managing the affairs. Apart from President and Vice President, there are Information Officers and Chief Information Officers who are all supervising the acts done by accused No.1. The Whistal Blower referred to by the petitioner is none other than the Ex-vendor and he had vengeances against the respondents.
15. Learned Senior Advocate submitted that under the guise of internal enquiry, respondent No.2 was called upon and held hostage. She was subjected to coercion. All her electronic devices were confiscated and formatted. Accordingly, she has addressed an e-mail to her higher officer on 16.04.2024 and a complaint is also registered with the Commissioner of Police on 13.05.2024. In fact, the petitioner has engaged the services of a private detective and it is the head of the private detective by name Nayanathara Demy is the complainant on behalf of the Company. No sanctity could be attached to the proceedings held in the internal enquiry. But the same could be placed before the Investigating Officer, instead of producing all such voluminous documents before this Court. He placed reliance on the decision of the Hon'ble 15 Apex Court in X... Vs. State of Telangana & Anr.9 to contend that the bail once granted shall not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial.
16. Learned Senior Advocate contended that different yardsticks should be applied for grant of bail and cancellation of the same. When liberty is extended to the accused by the learned Sessions Judge, when there are absolutely no grounds made out, same cannot be interfered with so lightly.
17. Learned Senior Advocate places reliance on the decision of the Hon'ble Apex Court in Himanshu Sharma Vs. State of Madhya Pradesh10 to contend that in a similar case, where bail was granted and a criminal miscellaneous case was moved before the High Court seeking cancellation of bail, contending that there was gross misrepresentation of facts, misleading the Court and indulging in fraud in entertaining the petition, the bail granted was cancelled by 9 (2018) 16 SCC 511 10 (2024) 4 SCC 222 16 the High Court. But the Hon'ble Apex Court found that this case was not for cancellation of bail. It categorically held that consideration for grant of bail is entirely different from cancellation thereof. The documents that are placed before the Court by the petitioner cannot be looked into by this Court as the same is liable to be scrutinized by the Investigating Officer.
18. Learned Senior Advocate submitted that as stated in the statement of objections, respondent No.2 was made a scapegoat, when she has not played any role in causing loss to the petitioner. The petitioner has concocted several e-mails and built up documents to some how see that the anticipatory bail granted in her favour is to be cancelled. It is not the stage to hold that respondent No.2 is responsible on mere allegations of fraud and cheating, when respondent Nos.2 and 3 are co-operating in the investigation and none of the conditions were violated.
19. Learned Senior Advocate also submitted that the prosecution has never come up with such a prayer seeking cancellation of anticipatory bail on the ground that accused 17 Nos.1 and 2 are required for custodial interrogation. Such a prayer is not available to the petitioner being the informant. There are no reasons to cancel the bail. Accordingly, he prays for dismissal of the petition.
20. Learned HCGP for respondent No.1 could not either support the petitioner or respondent Nos.2 and 3. She was at a loss to either support or challenge the order granting anticipatory bail by the learned Sessions Judge.
21. In view of the rival contentions urged by the learned counsel for both the parties, the point that would arise for my consideration is:
"Whether the petitioner has made out any grounds for cancellation of bail granted in favour of respondent Nos.2 and 3?"
My answer to the above point is in 'affirmative' for the following:
REASONS
22. The authorized person on behalf of the petitioner lodged the first information on 20.04.2024, where under serious allegations are made for having embezzled 18 Rs.54,62,09,890/- by accused Nos.1 to 5 in active collusion with one another. Admittedly, accused No.1 is serving in petitioner's Company since 2015. Initially, she joined the Company as Manager. During 2020, she was promoted as Director for Software Development. Even though it is contended by the learned senior Advocate for the respondents that there are five other superior officers to over see the work of accused No.1, they are said to be the President, Vice President, Board of Directors, the Information Officer and the Chief Information Officer. At this stage, it cannot be concluded by saying that these five persons were supervising or overseeing the work of accused No.1 and there were no chance for her to commit any offence.
23. It is the specific contention of the petitioner that it was accused No.1 who introduced accused No.3 stating that he is running the Company as DAN Technology Solutions Private Limited for providing services in developing software. It is stated that accused No.3 is none other than the ex- colleague of accused No.1. Admittedly, accused No.2 is the husband of accused No.1 and accused Nos.4 and 5 are the mother and wife of accused No.3. Prima-facie materials are 19 placed before the Court to contend that huge sums of money were credited to the account of these accused as well as children of accused Nos.1 and 2 and accused No.3.
24. It is pertinent to note that the petitioner is placing reliance on the document produced as per Annexure-H said to be in the handwriting of accused No.1 and signed by her. As per this document, accused No.1 categorically admitted that it was she who introduced DAN to the petitioner during 2017-18 through accused No.3 whom she was knowing when both of them were working with Nokia and they were family friends. It is also stated that she has concealed this fact from the petitioner-Company and from out of the amount that was received by accused No.3 through his fake company DAN, kickbacks were being received by the petitioner. She also refers to some goods received from accused No.3 and his associates and as per her estimates, such returns must be about one crores per year from 2018 till 2023. She refers to her bank account held with ICICI, Axis and HDFC Banks. She refers to the bank accounts of her husband i.e., respondent No.3 held with HDFC and Kotak Banks. She also undertakes to provide the details of all the bank accounts and statements 20 for the year 2018 till 2024. She declares that her team members are not involved in the case and she solely responsible for usurping the money.
25. The statement produced as confession statement of accused No.1 made during the internal enquiry held by the petitioner is seriously disputed by respondent Nos.2 and 3. But the fact remains that the same is in the handwriting of accused No.1 and signed by her. It is for her to give an explanation as to under what circumstances, she has given it. According to accused No.1, she was confined and given threat to give such declaration and she has complained to her higher officer through e-mail on 16.04.2024. As per the materials on record, this statement of accused No.1 was given by her on 12.04.2024. It is stated that she was coerced, held hostage and her electronic devices were confiscated and she was forced to give the data. But it is only after 16.04.2024, an e- mail was said to have been sent to her higher officer and only on 13.05.2024, a complaint was said to have been lodged, that too, with the Commissioner of Police much after obtaining anticipatory bail.
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26. The allegations made against the accused in general and against accused Nos.1 and 2 in particular, are serious in nature. What is the value of the internal enquiry held by the petitioner and the statement given by the accused before such internal Committee could be considered by the Court at the relevant stage. But since it is at the initial stage of investigation, these documents forms prima-facie materials.
27. It is pertinent to note that, initially, FIR was registered with Kadugodi Police Station. It is stated that recently, investigation was taken over by CID. There may be some strong reasons for handing over the investigation to special agency i.e., CID. The petitioner is a global Company said to be having its dealings worldwide. It deals with public money. The contention of the learned Senior Advocate for the petitioner that accused Nos.1 and 2 have formatted the electronic devices and tampered the e-mails is to be considered by the Investigating Officer during investigation. The bank accounts of all the accused and their near and dear ones are to be considered. Naturally, voluminous documents and materials are to be considered by the police. The very 22 nature of the offence in question is white collar offence and the investigation is to be conducted systematically. As rightly contended by the learned Senior Advocate, the nature and seriousness of the offence requires respondent Nos.2 and 3 for custodial interrogation, enquiring the accused and holding investigation for the name sake will never unearth the truth. Therefore, I am of the opinion that the accused are required for custodial interrogation by the Investigating Officer to bring out the truth.
28. The contention of the learned counsel for the respondents that the prosecution has not come up with the application seeking cancellation of bail, but only the petitioner has come before the Court cannot be a reason to reject the petition, since there is allegation of embezzlement of huge amount belonging to the petitioner - Company. Naturally, the informant will be worried and he will make all attempts to see that the investigation is undertaken in a proper manner to unearth the truth.
29. The contention of the respondents that the respondents have co-operated with the investigating officers 23 and also there is no allegation of violating any of the conditions may not be the sole reason to reject the petition. Even though there are serious allegations made against the accused, the learned Sessions Judge held that, the mail by the Whistal Blower is dated 05.12.2023. There is delay in lodging the first information as the same was lodged on 20.04.2024. The Court has not taken into consideration the fact that the petitioner - Company is making its efforts by holding internal enquiry through its officers. Even though it is alleged that private detective agency was engaged in holding such enquiry cannot be the reason to dub the enquiry as a colorable exercise, since the petitioner who lost huge sums of money is making all possible efforts to collect the information whether the petitioner is concocting the documents as contended by the respondents is to be considered by the Investigating Officer during investigation. If the respondents have not committed any such offence and on the other hand, if they are so innocent as contended, they will come with clean hands even after interrogation. But on the other hand, if the anticipatory bail granted remains as it is and the petition is to be rejected, even though the investigation is taken up by 24 the special wing i.e., CID, there may not be any progress in unearthing embezzlement of huge sums of money.
30. The learned Sessions Judge referred to the decision of the Hon'ble Apex Court in Bhadresh Bhipinbhai Sheth Vs. State of Gujarat11, where the Court has cautioned that it is imperative for the Courts to carefully and with meticulous precision evaluate the facts of the case before proceeding to grant bail. The learned Sessions Judge proceeded to form an opinion that the accused are entitled for anticipatory bail and they can join investigation with protection of such an order. It is not the question of the respondents- accused not joining the investigation or likelihood of their abscondence, but the very nature of the allegation that accused No.1 being in the key post of the petitioner- Company for over nine years, embezzled huge sums of money by introducing accused No.3 as a different Company and concealing the fact that he is her ex-colleague, requires her for custodial interrogation. It cannot be said that such interrogation will result in humiliation or disgrace to accused No.1. When such serious offence is made out, the 11 (2016) 1 SCC 152 25 humiliation that may be suffered by accused Nos.1 and 2 is inconsequential. When the allegations made against them are taken into consideration, where prima-facie it is shown that crores of rupees were embezzled and both accused Nos.1 and 2 have received kickbacks through various bank accounts and also that of their minor children, it is pre-mature to form an opinion regarding the truth or otherwise of such allegations. Suffice for me to say that serious allegations are made and prima-facie materials are placed before the Court in support of such allegations. Even though the offence is punishable with imprisonment for seven years, the same cannot be the sole reason to grant anticipatory bail, ignoring the seriousness of the offence and the compelling reason for subjecting the accused for custodial interrogation.
31. Learned Senior Advocate for the petitioner places reliance on the decision in Pratibha Manchandra (supra), where the Court referred to its earlier decision in Sushila Aggarwal (supra) rendered by the Constitution Bench and re- affirmed the principles laid down for considering the applications for anticipatory bail that the Court should consider the factors such as the nature and gravity of the 26 offences and the role attributed to the accused with specific facts of the case. The Court also held in para No.19 as under;
"19. The relief of Anticipatory Bail is aimed at safeguarding individual rights. While it serves as a crucial tool to prevent the misuse of the power of arrest and protects innocent individuals from harassment, it also presents challenges in maintaining a delicate balance between individual rights and the interests of justice. The tight rope we must walk lies in striking a balance between safeguarding individual rights and protecting public interest. While the right to liberty and presumption of innocence are vital, the court must also consider the gravity of the offence, the impact on society, and the need for a fair and free investigation. The court's discretion in weighing these interests in the facts and circumstances of each individual case becomes crucial to ensure a just outcome."
(emphasis supplied)
32. In the present case, it is no doubt a tight rope walk between the very allegations of criminal breach of trust, cheating and embezzlement by accused No.1 in active collusion of accused Nos.2 to 5, which runs into crores of rupees and receiving back as kickbacks as contended by the complainant, 27 whereas the contention of the accused that she is innocent and even though she worked as Director (Software Development), she is not aware of any misdeeds and there was no embezzlement as contended. Admittedly, we are at the initial stage of investigation, as virtually no investigation worth mentioning was undertaken. Even the learned HCGP is not in a position to oppose the petition with any facts and figures, nor she is supporting accused Nos.1 and 2. It appears she is in a dilemma as to whether the petition is to be supported or it is to be opposed. Now-a-days the prosecution is losing its credibility and days are not far when the public lose faith in such investigating agency. Handing over the investigation to the special agency i.e., CID at a later stage also supports the contention of the petitioner. Even though respondent No.2 is a lady that cannot be the sole reason to grant the pre-arrest protection ignoring the allegations and seriousness of the same. Even if respondent Nos.2 and 3 are interrogated after they are armed with the order of the anticipatory bail, I am afraid about the outcome of such investigation.
33. After perusal of the materials on record, in the light of the impugned order granting anticipatory bail in favour of 28 respondent Nos.2 and 3, I cannot help, but to interfere with the judicial discretionary exercised by the learned Sessions Judge as prima-facie there is an element of criminality and active collusion amongst the accused, which can only be unearthed by a free, fair, unhampered and dispassionate investigation. When a protective umbrella is provided to the accused by granting pre-arrest bail, that will render the whole exercise a futile one. No effective investigation or interrogation could be held in the present case, when the accused appears before the Investigating Officer with such protection. Looking to the nature and seriousness of the offence, I consider it as a special case, where anticipatory bail granted to respondent Nos.2 and 3 requires to be cancelled. Since the learned Sessions Judge has not taken into consideration the nature and seriousness of the allegation and prima-facie materials in support of such allegations and when such allegations cannot be supported unless the accused are subjected to custodial interrogation. Therefore, I answer the above point in the affirmative and proceed to pass the following;
ORDER
i. Petition is allowed.
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ii. The impugned order dated 08.05.2024 passed in
Crl.Misc.No.961/2024 by the learned VI Additional District and Sessions Judge, Bengaluru Rural District, Bengaluru, is set aside.
iii. The anticipatory bail granted to respondent Nos.2 and 3/accused Nos.1 and 2 is cancelled, acting under Section 439(2) of Cr.PC. They are directed to surrender before the trial Court within seven days from today i.e., on or before 26.06.2024 without fail.
Registry is directed to communicate this order to the jurisdictional Magistrate for information and for necessary action.
Sd/-
JUDGE PN