Punjab-Haryana High Court
Anupam Gupta vs State Of Ut Chandigarh on 1 June, 2023
2023:PHHC:080884
CRM-M-715-2023 + 16 cases -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
Case No. : CRM-M-715-2023
Date of Decision : June 01, 2023
Anupam Gupta .... Petitioner
vs.
State of UT, Chandigarh .... Respondent
CORAM : HON'BLE MR. JUSTICE GURBIR SINGH.
* * *
Present : Mr. R. S. Cheema, Senior Advocate
with Ms. Tanu Bedi, Advocate
for the petitioner(s).
Mr. Jaiteshwar S. Bhandari, AAG, Punjab
for the respondent-State
in CRM-M-2820, 2911 & 2967-2023.
Mr. Charanjit Singh Bakhshi, APP, UT, Chandigarh
for UT, Chandigarh in all the remaining cases.
* * *
GURBIR SINGH, J. :
1. Vide this common order, 17 petitions i.e. CRM-M-680-2023, CRM- M-715-2023, CRM-M-771-2023, CRM-M-2787-2023, CRM-M-2820- 2023, CRM-M-2849-2023, CRM-M-2851-2023, CRM-M-2853-2023, CRM-M-2857-2023, CRM-M-2861-2023, CRM-M-2871-2023, CRM-M- 2873-2023, CRM-M-2877-2023, CRM-M-2900-2023, CRM-M-2911- 2023, CRM-M-2913-2023 and CRM-M-2967-2023 shall be disposed of as all these petitions have been filed by Anupam Gupta and are based on similar facts and circumstances.
2. The brief particulars of all the afore-mentioned 17 cases are as under :-
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A CRM-M-680-2023 :
FIR No.0099 dated 11.06.2022 under sections 406, 420, 467, 468, 471 & 120-B IPC Police Station South Sector-34,Chandigarh.
Name of the complainant - Narinder Kumar and Ravi Kumar.
Amount involved as per version 30,64,000/-.
of the State
Details of project- Aerosiee
+ Time Square
Whether project is licensed No
or approved from RERA
B CRM-M-715-2023 :
FIR No.0065 dated 21.04.2022 under sections 420 & 120-B IPC Police Station South Sector-34,Chandigarh.
Name of the complainant Ramesh Kumar Chayal and two others.
Amount involved as per version 68,000,00/-. of the State Details of project- Tecktown Near Airport Road, Zirakpur.
Whether project is licensed Yes
or approved from RERA
C CRM-M-771-2023 :
FIR No.0066 dated 21.04.2022 under sections 406, 420, 467, 468, 471 & 120- B IPC Police Station South Sector-34,Chandigarh.
Name of the complainant - Jaidev Singh and Others.
Amount involved as per version 1,23,73,232/-. of the State Details of project- Centrum situated in Village Singpura, Zirakpur + Aeropolise MONIKA 2023.06.02 16:10 I attest to the accuracy and integrity of this document 2023:PHHC:080884 CRM-M-715-2023 + 16 cases -3-
Whether project is licensed
or approved from RERA Yes.
D CRM-M-2787-2023 :
FIR No.0051 dated 23.03.2022 under sections 420, 467 & 120-B IPC Police Station South Sector-34,Chandigarh.
Name of the complainant Raman Aggarwal.
Amount involved as per version 2,00,00,000/-. of the State Details of project Smart City, Banur, Punjab.
Whether project is licensed
or approved from RERA- No.
E CRM-M-2820-2023 :
FIR No.0032 dated 15.01.2022 under sections 406, 420 & 120-B IPC Police Station Zirakpur SAS Nagar, Punjab.
Name of the complainant Amarjit Kaur.
Amount involved as per version 3,11,000/-. of the State Details of project Tecktown Near Airport Road, Zirakpur.
Whether project is licensed
or approved from RERA Yes.
F CRM-M-2849-2023 :
FIR No.0101 dated 13.06.2022 under sections 406, 420, 467, 468, 471 & 120-B IPC Police Station South Sector-34,Chandigarh.
Name of the complainant - Sushil Kumar Mittal.
Amount involved as per version 4,52,56,447/-. of the State Details of project Centrum situated in Village Singpura, Zirakpur.
Whether project is licensed
or approved from RERA Yes.
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G CRM-M-2851-2023 :
FIR No.0120 dated 16.07.2022 under sections 406, 420, 467, 468, 471 & 120-B IPC Police Station South Sector-34,Chandigarh.
Name of the complainant Mrs. Vanita Rani and six others.
Amount involved as per version 1,42,55,450/-. of the State Details of project Camelia situated at Village Aujla, Tehsil Kharar, District SAS Nagar, Punjab.
Whether project is licensed
or approved from RERA Yes.
H CRM-M-2853-2023 :
FIR No.0119 dated 16.07.2022 under sections 406, 420, 467, 468, 471 & 120-B IPC Police Station South Sector-34,Chandigarh.
Name of the complainant - Seeta Tanwar and nine others.
Amount involved as per version 3,27,71,444/-. of the State Details of project- Camelia situated at Village Aujla, Tehsil Kharar, District SAS Nagar, Punjab.
Whether project is licensed
or approved from RERA Yes.
I CRM-M-2857-2023 :
FIR No.0104 dated 01.07.2022 under sections 406, 420, 467, 468, 471 & 120-B IPC Police Station South Sector-34,Chandigarh.
Name of the complainant Sahibjeet Singh Dhillon and 13 others.
Amount involved as per version 22,39,97,506/-.
of the State
Details of project Aeirosee
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Whether project is licensed
or approved from RERA No.
J CRM-M-2861-2023 :
FIR No.0067 dated 22.04.2022 under sections 420 & 120-B IPC Police Station South Sector-34, Chandigarh.
Name of the complainant Satwinder Kaur.
Amount involved as per version 20,50,000/-.
of the State
Details of project- Centrum situated in Village
Singpura, Zirakpur + Aerosiee
Whether project is licensed
or approved from RERA- Yes.
K CRM-M-2871-2023 :
FIR No.0082 dated 16.05.2022 under sections 406, 420, 467, 468, 471 & 120-B IPC Police Station South Sector-34,Chandigarh.
Name of the complainant Darmian Singh and 28 others.
Amount involved as per version 7,78,47,082/-. of the State Details of project Smart City situated at New Chandigarh,Mullanpur, Punjab.
Whether project is licensed
or approved from RERA- No.
L CRM-M-2873-2023 :
FIR No.0070 dated 22.04.2022 under sections 420, 468, 471 & 120- B IPC, Police Station South Sector-34,Chandigarh.
Name of the complainant Sushma Kumari and 3 others.
Amount involved as per version 1,54,90,000/-. of the State Details of project- Smart City situated at New Chandigarh,Mullanpur, Punjab.
MONIKA 2023.06.02 16:10 I attest to the accuracy and integrity of this document 2023:PHHC:080884 CRM-M-715-2023 + 16 cases -6- Whether project is licensed or approved from RERA- No. M CRM-M-2877-2023 :
FIR No.0069 dated 22.04.2022 under sections 420, 467, 468, 471 & 120-B IPC Police Station South Sector-34,Chandigarh.
Name of the complainant Sanjay Verma and others Amount involved as per version 2,45,000,00/-. of the State Details of project- (i) Centrum situated in Village Singpura, Zirakpur
(ii) Athens-1 situated at Mauja Ramgarh Budha, Zirakpur.
Whether project is licensed or approved from RERA- Yes.
N CRM-M-2900-2023 :
FIR No.0068 dated 22.04.2022 under sections 420 & 120-B IPC Police Station South Sector-34,Chandigarh. Name of the complainant Dev Bhushan Gupta.
Amount involved as per version 44,36,100/-. of the State Details of project- "GBP City" Central situated at Peer Muchalla, Zirakpur, District SAS Nagar Whether project is licensed or approved from RERA- No. O CRM-M-2911-2023 :
FIR No.0107 dated 26.02.2022 under sections 406, 420 & 120-B IPC Police Station Zirakpur SAS Nagar, Punjab.
Name of the complainant Vinod Prakash Attri.
MONIKA Amount involved as per version 17.5 lacs 2023.06.02 16:10 I attest to the accuracy and integrity of this document 2023:PHHC:080884 CRM-M-715-2023 + 16 cases -7- of the State Details of project Centrum situated in Zirakpur. Whether project is licensed or approved from RERA- Yes. P CRM-M-2913-2023 :
FIR No.0096 dated 10.06.2022 under sections 406, 420, 467, 468, 471 & 120-B IPC Police Station South Sector-34,Chandigarh.
Name of the complainant Aseem Parkash and five others.
Amount involved as per version 1,62,44,476/-. of the State Details of project- Tecktown Near Airport Road, Zirakpur.
Whether project is licensed
or approved from RERA- Yes.
Q CRM-M-2967-2023 :
FIR No.0002 dated 25.01.2022 under sections 406, 420 & 120-B IPC Police Station NRI, SAS Nagar, Punjab.
Name of the complainant Ravinder Gandhi.
[As per allegations, in this case, the petitioner induced the complainant and his firm to work with him and the GBP by representing that he was one of the Directors of GBP. They have provided services to them. There has been outstanding balance of Rs. 1.2 crore approximately. Earlier, they promised to give the complainant property in their project Centrum, Zirakpur. When he was in India, they came to his flat and stole those papers. They deducted a sum of Rs. 50,00,000/- in respect of showroom Numbers 268 and 212 in their Centrum project, Zirakpur.]
3. For the sake of convenience, facts are being taken from CRM-M-715- 2023.
4. The petitioner has approached this Court by way of filing the present petition under Section 438 Cr.P.C. for grant of anticipatory bail in case FIR No.65 dated 21.04.2022, under Sections 420, 120-B IPC, 1860, registered at MONIKA 2023.06.02 16:10 I attest to the accuracy and integrity of this document 2023:PHHC:080884 CRM-M-715-2023 + 16 cases -8- Police Station South, Sector 34, Chandigarh.
5. As per allegations, M/s Gupta Builders and Promoters Pvt. Ltd. (hereinafter referred to as "GBP" or "the Company") gave advertisements for booking plots in GBP or State, New Chandigarh. The petitioner was one of the Directors of the said Company. The petitioner, being Sales Director, used to organize seminars and also used to provide electronic media to allure the people for investment in projects of the said Company. The petitioner was also involved in holding press conferences to propagate the sales of GBP. Various investors including the complainants of different FIRs invested money in various projects of GBP. The builders promised to execute the registered sale deeds in a particular month and also signed agreements to Buy-Back. It also issued post-dated cheques, in case the Company would fail to register the sale deeds. Later on, it was known that the project was not approved by the Real Estate Regulatory Authority (RERA) but the Company was selling the plots at the sites without RERA number and government approvals. The Directors of the Company received amount in crores of rupees from various investors by alluring them but neither the plots were allotted to them nor their amounts were returned and the Directors ran after closing their business.
6. Learned Senior Counsel appearing for the petitioner has argued that the petitioner was only providing business consultancy to GBP as one of its clients and was one of the similarly situated nearly 500 brokers working with the Company in the region. GBP was being managed by three brothers namely Satish Kumar, Raman Kumar and Pardeep Kumar as its Directors MONIKA and the petitioner had no connection with the management of the Company.
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He was associated with the Company only to assist it or its Directors in different consultations and has an independent sales agreement with his own company namely M/s Green Realtors and Marketers Pvt. Ltd. He entered into an agreement with GBP on its assurance. None of the complainants is having any grievance against M/s Green Realtors and Marketers Pvt. Ltd. in any of the FIRs registered against GBP. It has been further argued that not a single penny has been alleged to have come to the account of the petitioner from any of the complainants. The Directors of the Company, who were at the helm of affairs and were managing the Company and its bank accounts, have fled away from the Country. In fact, in most of the FIRs, the complainants, who allege losing of their money by investing in the project of GBP, had actually got in touch with the named brokers. The transactions, that had happened between the complainants and the Company, were based on the agreements in writing. The entire money was deposited in the bank account of the Company. The petitioner is neither a partner nor a Director, not even a share-holder of the Company. Moreover, he is not a signatory to the bank account in which the money of the complainants was deposited. None of the agreement was signed by the petitioner. He is not the signatory to the security cheques issued by the Company. The Master Data, which was downloaded from the website of Ministry of Corporate Affairs, shows the composition of the Company, in which name of the petitioner does not figure. The petitioner is not being pursued in other proceedings because he is not a Director of the Company. In some of the cases filed before Consumer Commission by the claimants (some of whom are complainants in MONIKA the FIRs), name of the petitioner has been deleted from the array of 2023.06.02 16:10 I attest to the accuracy and integrity of this document 2023:PHHC:080884 CRM-M-715-2023 + 16 cases -10- respondents. In a case filed under Section 138 of the Negotiable Instruments Act, the petitioner was summoned. He filed a quashing petition being CRM-M-50472-2021 primarily on the ground that he is neither a Director of the Company nor is responsible for the day-to-day affairs of the Company. In the said petition, notice of motion was issued and proceedings in the trial were also stayed qua the petitioner. The various orders passed by NCLT would also show that the petitioner was not involved in the proceedings of GBP and he had nothing to do with the working of the Company. In the initially registered FIR, be it by RERA or authorities like GMADA, against the Company and its Directors, the petitioner is not named. Over the period of five years, GBP sold nearly 6000 units through 500 different brokers, petitioner being one of them. The total sale of units through the petitioner for GBP is 121 in number and none of the said unit is the subject matter of any FIR. Rather, an honest investigation would reveal that 90% of the units sold by the petitioner have ended up with the buyers having complete ownership and possession and for the rest 10%, wherever the possession has been delayed or anything of that sort happened, there is no FIR registered. The entire case is based on documentary evidence. All the documents have already been taken into possession by the police.
7. The petitioner was declared Proclaimed Offender (PO) in some of the aforesaid cases by learned Judicial Magistrate Ist Class, Chandigarh. The petitioner has already challenged the said orders before this Court by way of filing a petition being CRM-M-58173-2022 (Annexure P-29), in which he has prayed for quashing the order dated 21.11.2022 declaring him MONIKA Proclaimed Offender, while dismissing the application filed by the petitioner 2023.06.02 16:10 I attest to the accuracy and integrity of this document 2023:PHHC:080884 CRM-M-715-2023 + 16 cases -11- for keeping the proceedings in abeyance in four cases i.e. :-
(a) FIR No.065 dated 24.04.2022, under Sections 420, 120-B IPC
(b) FIR No.066 dated 21.04.2022, under Sections 406, 420, 467, 468, 471, 120-B IPC
(c) FIR No.067 dated 22.04.2022, under Sections 420, 120-B IPC
(d) FIR No.099 dated 11.06.2022, under Sections 406, 420, 467, 468, 471, 120-B IPC, all registered at Police Station South, Sector 34, Chandigarh.
8. In the said case, notice of motion had already been issued to the respondent-State. An amount of Rs.2.57 crores over a period of four years was transferred from the account of GBP to the account of M/s Green Realtors and Marketers Pvt. Ltd. The petitioner has even paid taxes for the said amount. The amount of brokerage earned by the petitioner while working as a broker with GBP, for the units sold by him, was not the subject matter of the FIRs registered. The petitioner has joined investigation after being granted interim bail in five different FIRs. He has shown his good conduct by not fleeing from the Country, as done by other Directors of GBP. He has even surrendered his Passport to show his bona-fide. The allegations levelled against the petitioner are primarily of cheating, punishable under Section 420 IPC, where maximum punishment is of seven years. In some of the FIRs, the police have also added sections pertaining to forgery which involve punishment of more than seven years, only to defeat the objective of legal provision and guidelines issued by Hon'ble Supreme Court in the case of Arnesh Kumar vs. State of Bihar - (2014) 8 SCC 273. It has been MONIKA further argued that the matter pertaining to GBP is sub-judice before NCLT 2023.06.02 16:10 I attest to the accuracy and integrity of this document 2023:PHHC:080884 CRM-M-715-2023 + 16 cases -12- under IBC Code. The order dated 15.12.2022, passed by NCLT (Annexure P-31) would show that the process of finalizing the Resolution Plan is going on and once the same is finalized, and the Company is taken over by another Company, whose Resolution Plan is approved by the Tribunal, the claims of all the complainants, who are claimants in NCLT as well, would be satisfied.
9. In support of his contentions, learned Senior Counsel appearing for the petitioner has placed reliance on Gurbaksh Singh Sibia vs. State of Punjab - (1980) 2 SCC 565, Siddharam Satlingappa Mhetre vs. State of Maharashtra and others - (2011) 1 SCC 694, Bhadresh Bipinbhai Sheth vs. State of Gujarat - (2016) 1 SCC 152 and Satender Kumar Antil vs. CBI and another - SLP (Crl.) 5191 of 2021, decided on 11.07.2022.
10. On the other hand, learned State Counsels appearing for State of Punjab and UT, Chandigarh have opposed the petitions by submitting that the petitioner has already been declared a Proclaimed Offender in some cases registered against him. A proclaimed person, who has been absconding from the process of law, is not entitled to the extra-ordinary discretionary relief of anticipatory bail. Reliance in this regard has been placed on Lavesh vs. State (NCT of Delhi) - (2012) 8 SCC 730, State of Madhya Pradesh vs. Pradeep Sharma - (2014) 2 SCC 171, Prem Shankar Prasad vs. State of Bihar and another - 2021 SCC Online SC 955 and Suresh Babu vs. State of UP and another - 2022 SCC Online ALL 679.
11. It has further been submitted that the petitioner had already filed CRM-M-58173-2022 (Annexure P-29), challenging the correctness and validity of the orders declaring him Proclaimed Offender in the four MONIKA different FIRs. The only ground taken by the petitioner in the said petition 2023.06.02 16:10 I attest to the accuracy and integrity of this document 2023:PHHC:080884 CRM-M-715-2023 + 16 cases -13- is that the offences, under which he has been booked in the four FIRs, in which he has been declared as a Proclaimed Offender, are not mentioned in Section 82(4) Cr.P.C. In case Deeksha Puri vs. State of Haryana - CRM- M-359-2012, decided by a Co-ordinate Bench of this Court on 16.10.2012, it is held that order of declaring a person Proclaimed Offender cannot be challenged solely on the ground that the offence alleged to have been committed by him is not included in the Sections mentioned in Section 82(4) Cr.P.C. During investigation, it has been found that that Directors of GBP launched various projects like residential, commercial, plots, flats, shops, showrooms, hotels etc. around Chandigarh in District Mohali (Punjab). The petitioner being Sales Director, used to organize seminars to allure the people for investment in the Company. Various amounts were invested in various projects of GBP due to false promises of Sales Director i.e. the petitioner. The petitioner is shown to be the Sales Director in the diary made by the GBP. A copy of the same has been placed on record as Annexure R-1. The petitioner had been holding Press Conferences in order to propagate the sales of the Company. The petitioner had been receiving awards from national and international dignitaries on behalf of GBP Group. The photographs in this regard have been appended on the file as Annexure R-2. A copy of the Agreement executed by GBP with M/s Green Realtors and Marketers Pvt. Ltd., regarding its appointment as "Sales Associate/s" of GBP is Annexure R-3. The record reveals that an amount of Rs.1,88,76,000/- was deposited by GBP in the account of M/s Green Realtors and Marketers Pvt. Ltd., which is owned by the petitioner. As per MONIKA the Account Statement (Annexure P-8), the petitioner has not furnished any 2023.06.02 16:10 I attest to the accuracy and integrity of this document 2023:PHHC:080884 CRM-M-715-2023 + 16 cases -14- explanation as to how such a huge amount had come in his account. About 115 complaints were received, in which approximately an amount of Rs.40,00,00,000/- (Rupees Forty Crores) is involved and 19 FIRs have been registered against all the Directors of GBP. The cases, in which anticipatory bail was granted, notices were sent under Section 41-A Cr.P.C. to the petitioner but the petitioner did not join investigation. The residential addresses given by the petitioner in all the petitions were found to be fake. The petitioner was not found residing at any one of them. Therefore, prayer for dismissal of the petitions has been made.
12. Learned Senior Counsel for the petitioner has further argued that there is no absolute bar in filing the anticipatory bail petition by a person, who has been declared a Proclaimed Offender. In support of his contentions, he has further relied upon following judgments :-
(i) Mahender Kumar vs. State of Himachal Pradesh - 2021 (1) RCR (Criminal) 156;
(ii) Shishupal vs. State of Madhya Pradesh - M.Cr.C. No.3940 of 2021 - MANU/MP/0178/2021;
(iii) Balveer Singh Bundela vs. State of Madhya Pradesh -
M.Cr.C. No.5621 of 2020 - MANU/MP/0830/2020;
(iv) Sukumar Jain vs. UOI - Bail No.5883 of 2020 - MANU/UP/ 0347/2021;
(v) Mamta Giri vs. State of UT, Chandigarh - CRM-M-3052-
2022 - decided on 01.02.2022.
13. Heard.
14. The first question which arises before this Court is, whether a person against whom proceedings under Section 82 Cr.P.C. have been initiated or MONIKA he is declared Proclaimed Person/Proclaimed Offender, can seek 2023.06.02 16:10 I attest to the accuracy and integrity of this document 2023:PHHC:080884 CRM-M-715-2023 + 16 cases -15- anticipatory bail or there is absolute bar for grant of anticipatory bail to such person. In case Gurbaksh Singh Sibia (supra), the Hon'ble Apex Court held that anticipatory bail is pre-arrest legal process which directs that if the person, in whose favour it is issued, is thereafter arrested on the accusation, in respect of which the direction is issued, he shall be released on bail. It is further held that in order to meet the challenge of Article 21 of the Constitution, the procedure established by law for depriving a person of his liberty must be fair, just and reasonable. The beneficent provision contained in Section 438 Cr.P.C. must be saved, not jettisoned. Apart from false cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail.
15. Few observations made by the Hon'ble Apex Court in case Gurbaksh Singh Sibia (supra) are extracted below :-
"19. A great deal has been said by the High Court on the fifth proposition framed by it, according to which, inter alia, the power under Section 438 should not be exercised if the investigating agency can make a reasonable claim that it can secure incriminating material from information likely to be received from the offender under Section 27 of the Evidence Act. .............. For similar reasons, we are unable to agree that anticipatory bail should be refused if a legitimate case for the remand of the offender to the police custody under Section 167(2) of the Code is made MONIKA out by the investigating agency.
2023.06.02 16:10 I attest to the accuracy and integrity of this document 2023:PHHC:080884 CRM-M-715-2023 + 16 cases -16- xx xx xx 21. The High Court says in its fourth
proposition that in addition to the limitations mentioned in Section 437, the petitioner must make out a "special case" for the exercise of the power to grant anticipatory bail. This, virtually, reduces the salutary power conferred by Section 438 to a dead letter. In its anxiety, otherwise just, to show that the power conferred by Section 438 is not "unguided or uncanalised", the High Court has subjected that power to a restraint which will have the effect of making the power utterly unguided. To say that the applicant must make out a "special case" for the exercise of the power to grant anticipatory bail is really to say nothing. The applicant has undoubtedly to make out a case for the grant of anticipatory bail. But one cannot go further and say that he must make out a "special case". We do not see why the provisions of Section 438 should be suspected as containing something volatile or incendiary, which needs to be handled with the greatest care and caution imaginable. A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hall mark of a prudent exercise of MONIKA judicial discretion. One ought not to make a 2023.06.02 16:10 I attest to the accuracy and integrity of this document 2023:PHHC:080884 CRM-M-715-2023 + 16 cases -17- bugbear of the power to grant anticipatory bail.
xx xx xx
25. We hold the decision in Balchand Jain (supra) in great respect but it is necessary to remember that the question as regards the interpretation of Section 438 did not at all arise in that case. Fazal Ali, J. has stated in paragraph 3 of his judgment that "the only point" which arose for consideration before the Court was whether the provisions of Section 438 relating to anticipatory bail stand overruled and repealed by virtue of Rule 184 of the Defence and Internal Security of India Rules, 1971 or whether both the provisions can, by the rule of harmonious interpretation, exist side by side. Bhagwati, J. has also stated in his judgment, after adverting to Section 438 that Rule 184 is what the Court was concerned with in the appeal.
The observations made in Balchand Jain (supra) regarding the nature of the power conferred by Section 438 and regarding the question whether the conditions mentioned in Section 437 should be read into Section 438 cannot therefore be treated as concluding the points which arise directly for our consideration. We agree, with respect, that the power conferred by Section 438 is of an extraordinary character in the sense indicated above, namely, that it is not ordinarily resorted to like the power conferred by Sections 437 and 439. We also agree that the power to grant anticipatory bail should be exercised with due care and circumspection but beyond that, it is not possible to agree with the observations made in Balchand MONIKA Jain (supra) in an altogether different context on 2023.06.02 16:10 I attest to the accuracy and integrity of this document 2023:PHHC:080884 CRM-M-715-2023 + 16 cases -18- an altogether different point.
26. We find a great deal of substance in Mr. Tarkunde's submission that since denial of bail amounts to deprivation of personal liberty, the Court should lean against the imposition of unnecessary restrictions on the scope of Section 438, especially when no such restrictions have been imposed by the legislature in the terms of that section. Section 438 is a procedural provision which is concerned with the personal liberty of the individual, who is entitled to the benefit of the presumption of innocence since he is not, on the date of his application for anticipatory bail, convicted of the offence in respect of which he seeks bail. An overgenerous infusion of constraints and conditions which are not to be found in Section 438 can make its provisions constitutionally vulnerable since the right to personal freedom cannot be made to depend on compliance with unreasonable restrictions. The beneficient provision contained in Section 438 must be saved, not jettisoned. No doubt can linger after the decision in Maneka Gandhi that in order to meet the challenge of Article 21 of the Constitution, the procedure established by law for depriving a person of his liberty must be fair, just and reasonable. Section 438, in the form in which it is conceived by the legislature, is open to no exception on the ground that it prescribes a procedure which is unjust or unfair. We ought, at all costs, to avoid throwing it open to a Constitutional challenge by reading words in it MONIKA which are not be found therein.
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28. Coming nearer home, it was observed by Krishna Iyer, J., in Gudikanti Narasimhulu v. Public Prosecutor, High Court of Andhra Pradesh that "the issue of bail is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process. After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of procedure established by law. The last four words of Article 21 are the life of that human right.
16. In case Siddharam Satlingappa Mhetre (supra), the Hon'ble Apex Court has held as under :-
"85. It is a matter of common knowledge that a large number of undertrials are languishing in jail for a long time even for allegedly committing very minor offences. This is because section 438 Cr.P.C. has not been allowed its full play. The Constitution Bench in Sibbia's case (supra) clearly mentioned that section 438 Cr.P.C. is extraordinary because it was incorporated in the Code of Criminal Procedure, 1973 and before that other provisions for grant of bail were sections 437 and 439 Cr.P.C. It is not extraordinary in the sense that it should be invoked only in exceptional or rare cases. Some courts of smaller strength have erroneously observed that section 438 Cr.P.C. should be invoked only in exceptional or rare cases. Those orders are contrary to the law laid down by the judgment of MONIKA 2023.06.02 16:10 I attest to the accuracy and integrity of this document 2023:PHHC:080884 CRM-M-715-2023 + 16 cases -20- the Constitution Bench in Sibbia's case (supra).
86. According to the report of the National Police Commission, the power of arrest is grossly abused and clearly violates the personal liberty of the people, as enshrined under Article 21 of the Constitution, then the courts need to take serious notice of it. When conviction rate is admittedly less than 10%, then the police should be slow in arresting the accused. The courts considering the bail application should try to maintain fine balance between the societal interest vis-`-vis personal liberty while adhering to the fundamental principle of criminal jurisprudence that the accused that the accused is presumed to be innocent till he is found guilty by the competent court.
87. The complaint filed against the accused needs to be thoroughly examined including the aspect whether the complainant has filed false or frivolous complaint on earlier occasion. The court should also examine the fact whether there is any family dispute between the accused and the complainant and the complainant must be clearly told that if the complaint is found to be false or frivolous, then strict action will be taken against him in accordance with law. If the connivance between the complainant and the investigating officer is established then action be taken against the investigating officer in accordance with law.
88. The gravity of charge and exact role of the accused must be properly comprehended.MONIKA
Before arrest, the arresting officer must record the 2023.06.02 16:10 I attest to the accuracy and integrity of this document 2023:PHHC:080884 CRM-M-715-2023 + 16 cases -21- valid reasons which have led to the arrest of the accused in the case diary. In exceptional cases the reasons could be recorded immediately after the arrest, so that while dealing with the bail application, the remarks and observations of the arresting officer can also be properly evaluated by the court.
89. It is imperative for the courts to carefully and with meticulous precision evaluate the facts of the case. The discretion must be exercised on the basis of the available material and the facts of the particular case. In cases where the court is of the considered view that the accused has joined investigation and he is fully cooperating with the investigating agency and is not likely to abscond, in that event, custodial interrogation should be avoided.
90. A great ignominy, humiliation and disgrace is attached to the arrest. Arrest leads to many serious consequences not only for the accused but for the entire family and at times for the entire community. Most people do not make any distinction between arrest at a pre-conviction stage or post-conviction stage. Whether the powers under section 438 Cr.P.C. are subject to limitation of section 437 Cr.P.C.?
91. The question which arises for consideration is whether the powers under section 438 Cr.P.C. are unguided or uncanalised or are subject to all the limitations of section 437 Cr.P.C.? The Constitution Bench in Sibbia's case (supra) has clearly observed that there is no MONIKA justification for reading into section 438 Cr.P.C.
2023.06.02 16:10 I attest to the accuracy and integrity of this document 2023:PHHC:080884 CRM-M-715-2023 + 16 cases -22- and the limitations mentioned in section
437 Cr.P.C. The Court further observed that the plentitude of the section must be given its full play. The Constitution Bench has also observed that the High Court is not right in observing that the accused must make out a "special case" for the exercise of the power to grant anticipatory bail. This virtually, reduces the salutary power conferred by section 438 Cr.P.C. to a dead letter. The Court observed that "We do not see why the provisions of Section 438 Cr.P.C. should be suspected as containing something volatile or incendiary, which needs to be handled with the greatest care and caution imaginable."
92. As aptly observed in Sibbia's case (supra) that :
"21. ....A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail."
93. The Constitution Bench in the same judgment also observed that a person seeking anticipatory bail is still a free man entitled to the presumption of innocence. He is willing to submit to restraints and conditions on his freedom, by the MONIKA 2023.06.02 16:10 I attest to the accuracy and integrity of this document 2023:PHHC:080884 CRM-M-715-2023 + 16 cases -23- acceptance of conditions which the court may deem fit to impose, in consideration of the assurance that if arrested, he shall enlarged on bail.
94. The proper course of action ought to be that after evaluating the averments and accusation available on the record if the court is inclined to grant anticipatory bail then an interim bail be granted and notice be issued to the public prosecutor. After hearing the public prosecutor the court may either reject the bail application or confirm the initial order of granting bail. The court would certainly be entitled to impose conditions for the grant of bail. The public prosecutor or complainant would be at liberty to move the same court for cancellation or modifying the conditions of bail any time if liberty granted by the court is misused. The bail granted by the court should ordinarily be continued till the trial of the case.
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112. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail:
i. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
ii. The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;
iii. The possibility of the applicant to flee from justice;
MONIKA 2023.06.02 16:10 I attest to the accuracy and integrity of this document 2023:PHHC:080884 CRM-M-715-2023 + 16 cases -24- iv. The possibility of the accused's
likelihood to repeat similar or the other offences.
v. Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.
vi. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.
vii. The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;
viii. While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;
ix. The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; x. Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.
113. The arrest should be the last option and it should be restricted to those exceptional cases where arresting the accused is imperative in the facts and circumstances of that case. The court must carefully examine the entire available record MONIKA 2023.06.02 16:10 I attest to the accuracy and integrity of this document 2023:PHHC:080884 CRM-M-715-2023 + 16 cases -25- and particularly the allegations which have been directly attributed to the accused and these allegations are corroborated by other material and circumstances on record.
114. These are some of the factors which should be taken into consideration while deciding the anticipatory bail applications. These factors are by no means exhaustive but they are only illustrative in nature because it is difficult to clearly visualize all situations and circumstances in which a person may pray for anticipatory bail. If a wise discretion is exercised by the concerned judge, after consideration of entire material on record then most of the grievances in favour of grant of or refusal of bail will be taken care of. The legislature in its wisdom has entrusted the power to exercise this jurisdiction only to the judges of the superior courts. In consonance with the legislative intention we should accept the fact that the discretion would be properly exercised. In any event, the option of approaching the superior court against the court of Sessions or the High Court is always available.
115. Irrational and Indiscriminate arrest are gross violation of human rights. In Joginder Kumar's case (supra), a three Judge Bench of this Court has referred to the 3rd report of the National Police Commission, in which it is mentioned that the quality of arrests by the Police in India mentioned power of arrest as one of the chief sources of corruption in the police. The report suggested that, by and large, nearly 60% of MONIKA 2023.06.02 16:10 I attest to the accuracy and integrity of this document 2023:PHHC:080884 CRM-M-715-2023 + 16 cases -26- the arrests were either unnecessary or unjustified and that such unjustified police action accounted for 43.2% of the expenditure of the jails.
116. Personal liberty is a very precious fundamental right and it should be curtailed only when it becomes imperative according to the peculiar facts and circumstances of the case.
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122. In our considered view, the
Constitution Bench in Sibbia's case (supra) has comprehensively dealt with almost all aspects of the concept of anticipatory bail under section 438 Cr.P.C. A number of judgments have been referred to by the learned counsel for the parties consisting of Benches of smaller strength where the courts have observed that the anticipatory bail should be of limited duration only and ordinarily on expiry of that duration or standard duration, the court granting the anticipatory bail should leave it to the regular court to deal with the matter. This view is clearly contrary to the view taken by the Constitution Bench in Sibbia's case (supra). In the preceding paragraphs, it is clearly spelt out that no limitation has been envisaged by the Legislature under section 438 Cr.P.C. The Constitution Bench has aptly observed that "we see no valid reason for rewriting section 438 with a view, not to expanding the scope and ambit of the discretion conferred on the High Court or the Court of Session but, for the purpose of limiting it".
MONIKA
17. In Bhadresh Bipinbhai Sheth (supra), it has been held as under :- 2023.06.02 16:10 I attest to the accuracy and integrity of this document
2023:PHHC:080884 CRM-M-715-2023 + 16 cases -27-
"5. The aforesaid brief resume depicts that the charge was framed against the appellant initially in the year 2001 only under Section 506(2) of IPC. Insofar as charge under Section 376 of IPC is concerned, it is added only in the year 2014. Further, the original charge was framed under Section 506(2) IPC on the basis of the statement recorded on 31.05.2001 which was treated as FIR and which did not contain the allegation of rape. If one has to go by these facts, coupled with the fact that allegation of rape is of the year 1997-98, one may not find fault with the order of the Additional Session Judge granting anticipatory bail. However, the impugned order passed by the High Court whereby the anticipatory bail order of the Additional Session Judge is cancelled, does not take the matter in such a simplistic manner and, therefore, a detailed discussion on the issue has become imperative.
xx xx xx
16. We have given our thoughtful and serious consideration to the aforesaid submissions on the charges, particularly, keeping in mind that there is a charge of rape against the appellant and the case projected by the prosecutrix is that as a helpless and weak soul, she has been immensely harrassed, physically abused and mentally tortured by the appellant.
17. In the first place, it is necessary to remind ourselves that in the present proceedings, this Court is concerned not about the feasibility of framing of the charge under Section 376 IPC or MONIKA 2023.06.02 16:10 I attest to the accuracy and integrity of this document 2023:PHHC:080884 CRM-M-715-2023 + 16 cases -28- merit thereof but to the grant of anticipatory bail to the appellant. Therefore, the arguments of the prosecutrix that such a charge is rightly framed and the submissions on behalf of the appellant attempting to find the loopholes and the weakness in the prosecution case, would not be of much relevance to the issue involved. At this stage, it cannot be said as to whether there was any physical relationship between the appellant and the prosecutrix and, if so, whether it was consensual and, therefore, no charge of rape was made out. The fact remains that a charge of rape has been framed. It would ultimately be for the trial court to arrive at the findings as to whether such a charge stands proved or not, on the basis of evidence that would be produced by the prosecution in support of this charge. With these preliminary remarks, we advert to the core issue, namely, whether in the circumstances of this case, appellant was entitled to anticipatory bail or not and whether the High Court was justified in cancelling the anticipatory bail.
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21. Before we proceed further, we would like to discuss the law relating to grant of anticipatory bail as has been developed through judicial interpretative process. A judgment which needs to be pointed out is a Constitution Bench Judgment of this Court in the case of Gurbaksh Singh Sibbia and Others v. State of Punjab. The Constitution Bench in this case emphasized that provision of anticipatory bail enshrined in Section MONIKA 2023.06.02 16:10 I attest to the accuracy and integrity of this document 2023:PHHC:080884 CRM-M-715-2023 + 16 cases -29- 438 of the Code is conceptualised under Article 21 of the Constitution which relates to personal liberty. Therefore, such a provision calls for liberal interpretation of Section 438 of the Code in light of Article 21 of the Constitution. The Code explains that an anticipatory bail is a pre- arrest legal process which directs that if the person in whose favour it is issued is thereafter arrested on the accusation in respect of which the direction is issued, he shall be released on bail. The distinction between an ordinary order of bail and an order of anticipatory bail is that whereas the former is granted after arrest and therefore means release from the custody of the police, the latter is granted in anticipation of arrest and is therefore, effective at the very moment of arrest. A direction under Section 438 is therefore intended to confer conditional immunity from the 'touch' or confinement contemplated by Section 46 of the Code.
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22. Though the Court observed that the principles which govern the grant of ordinary bail may not furnish an exact parallel to the right to anticipatory bail, still such principles have to be kept in mind, namely, the object of bail which is to secure the attendance of the accused at the trial, and the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial. Otherwise, bail is not to be withheld as a punishment. The Court has also to MONIKA 2023.06.02 16:10 I attest to the accuracy and integrity of this document 2023:PHHC:080884 CRM-M-715-2023 + 16 cases -30- consider whether there is any possibility of the accused tampering with evidence or influencing witnesses etc. Once these tests are satisfied, bail should be granted to an undertrial which is also important as viewed from another angle, namely, an accused person who enjoys freedom is in a much better position to look after his case and to properly defend himself than if he were in custody. Thus, grant or non-grant of bail depends upon a variety of circumstances and the cumulative effect thereof enters into judicial verdict. The Court stresses that any single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail. After clarifying this position, the Court discussed the inferences of anticipatory bail in the following manner: [Gurbaksh Singh Sibia's case (supra)] "31. In regard to anticipatory bail, if the proposed accusation appears to stem not from motives of furthering the ends of justice but from some ulterior motive, the object being to injure and humiliate the applicant by having him arrested, a direction for the release of the applicant on bail in the event of his arrest would generally be made. On the other hand, if it appears likely, considering the antecedents of the applicant, that taking advantage of the order of anticipatory bail he will flee from justice, such an order would not be made. But the converse of these propositions is not necessarily true. That is to say, it cannot be laid down as an inexorable rule that anticipatory bail cannot be granted unless the proposed accusation appears to be actuated by mala fides; and, equally, that anticipatory bail must be granted if there is no fear that the applicant will abscond. There are several other considerations, too MONIKA numerous to enumerate, the combined effect 2023.06.02 16:10 I attest to the accuracy and integrity of this document 2023:PHHC:080884 CRM-M-715-2023 + 16 cases -31- of which must weigh with the court while granting or rejecting anticipatory bail. The nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable possibility of the applicant's presence not being secured at the trial, a reasonable apprehension that witnesses will be tampered with and "the larger interests of the public or the State" are some of the considerations which the court has to keep in mind while deciding an application for anticipatory bail. The relevance of these considerations was pointed out in The State v. Captain Jagjit Singh, AIR 1962 SC 253 : (1962) 3 SCR 622 : (1962) 1 Cri LJ 216, which, though, was a case under the old Section 498 which corresponds to the present Section 439 of the Code. It is of paramount consideration to remember that the freedom of the individual is as necessary for the survival of the society as it is for the egoistic purposes of the individual. A person seeking anticipatory bail is still a free man entitled to the presumption of innocence. He is willing to submit to restraints on his freedom, by the acceptance of conditions which the court may think fit to impose, in consideration of the assurance that if arrested, he shall be enlarged on bail."
xx xx xx
24. Another case to which we would like to refer is the judgment of a Division Bench of this Court in the case of Siddharam Satlingappa Mhetre v. State of Maharashtra and Others[2].
This case lays down an exhaustive commentary of Section 438 of the Code covering, in an erudite fashion, almost all the aspects and in the process relies upon the aforesaid Constitution Bench judgment in Gurbaksh Singh's case. In the very first para, the Court highlighted the conflicting interests which are to be balanced while taking a MONIKA decision as to whether bail is to be granted or not, 2023.06.02 16:10 I attest to the accuracy and integrity of this document 2023:PHHC:080884 CRM-M-715-2023 + 16 cases -32- as is clear from the following observations:
"1. Leave granted. This appeal involves issues of great public importance pertaining to the importance of individual's personal liberty and the society's interest. Society has a vital interest in grant or refusal of bail because every criminal offence is the offence against the State. The order granting or refusing bail must reflect perfect balance between the conflicting interests, namely, sanctity of individual liberty and the interest of the society. The law of bails dovetails two conflicting interests, namely, on the one hand, the requirements of shielding society from the hazards of those committing crimes and potentiality of repeating the same crime while on bail and on the other hand, absolute adherence to the fundamental principle of criminal jurisprudence regarding presumption of innocence of an accused until he is found guilty and the sanctity of individual liberty."
18. In case of Lavesh (supra), Hon'ble Supreme Court has held as under :-
"10. ... Normally, when the accused is "absconding" and declared as a "proclaimed offender", there is no question of granting anticipatory bail. We reiterate that when a person against whom a warrant had been issued and is absconding or concealing himself in order to avoid execution of warrant and declared as a proclaimed offender in terms of Section 82 of the Code is not entitled the relief of anticipatory bail.
19. In this case, expression 'normally' is used which means that when the accused is absconding, then anticipatory bail is not to be granted normally.
20. In case of Pradeep Sharma (supra), Hon'ble Supreme Court placing MONIKA 2023.06.02 16:10 I attest to the accuracy and integrity of this document 2023:PHHC:080884 CRM-M-715-2023 + 16 cases -33- reliance upon Lavesh (supra), held that it is clear from the above decision that if anyone is declared as an absconder/proclaimed offender in terms of Section 82 of the Code, he is not entitled to the relief of anticipatory bail.
21. In the case of Prem Shankar Prasad (supra), Hon'ble Supreme court has observed as under :-
"7. We have heard the learned counsel appearing on behalf of the appellant original informant − complainant as well as learned counsel appearing on behalf of the State and the learned counsel appearing on behalf of respondent no.2 − accused. It is required to be noted that after investigation a charge−sheet has been filed against respondent no.2 accused for the offences punishable under sections 406, 420 of IPC also. Thus it has been found that there is a prima facie case against the accused. It has come on record that the arrest warrant was issued by the learned Magistrate as far as back on 19.12.2018 and thereafter proceedings under sections 82−83 of Cr.PC have been initiated pursuant to the order passed by the learned Chief Judicial Magistrate dated 10.01.2019. Only thereafter respondent No.2 moved an application before the learned Trial Court for anticipatory bail which came to be dismissed by the learned Additional Sessions Judge, Saran, by a reasoned order. The relevant observations made by the learned Additional Sessions Judge, Saran, while rejecting the anticipatory bail application are asunder :-
Perused the record. The prosecution case as alleged in the typed application of the informant MONIKA 2023.06.02 16:10 I attest to the accuracy and integrity of this document 2023:PHHC:080884 CRM-M-715-2023 + 16 cases -34- Prem Shankar Prasad is that the informant is a retailer shopkeeper of medicines in the name of Maa Medical Store, Gandhi Chauk, Chapra and the petitioner is his stockiest who runs his business in the name of Rajnish Pharma, Mauna Pakari. The petitioner and the informant were on good terms, so, the informant gave Rs. 36,00,000/- to the petitioner in case and through cheque for purchase of medicine. When the required were not supplied to the informant, the informant demanded his Rs. 36,00,000/- then, the petitioner gave a cheque of Rs. 10,00,000/- bearing cheque no. 137763 dated 25.11.2017 which was in the Canara Bank of the petitioner which was dishonored by the bank with a note "insufficient fund". Thereafter the informant demanded his money in case. On 20.06.18 but, the brothers of the petitioner misbehaved with the informant. The brothers of the petitioner also threatened not to contact the police or the consequences will be worst: On this informant Chapra Town PS No. 453/2018 was registered and investigation proceeded.
-xxx-
...Recently, in Lavesh v. State (NCT of Delhi) [(2012) 8 SCC 730] , this Court (of which both of us were parties) considered the scope of granting relief under Section 438 vis−à−vis a person who was declared as an absconder or proclaimed offender in terms of Section 82 of the Code. In para 12, this Court held as under : (SCC p. 733)
12. From these materials and information, it is clear that the present appellant was not MONIKA available for interrogation and investigation and 2023.06.02 16:10 I attest to the accuracy and integrity of this document 2023:PHHC:080884 CRM-M-715-2023 + 16 cases -35- was declared as absconder. Normally, when the accused is absconding and declared as a proclaimed offender, there is no question of granting anticipatory bail. We reiterate that when a person against whom a warrant had been issued and is absconding or concealing himself in order to avoid execution of warrant and declared as a proclaimed offender in terms of Section 82 of the Code he is not entitled to the relief of anticipatory bail. It is clear from the above decision that if anyone is declared as an absconder/proclaimed offender in terms of Section 82 of the Code, he is not entitled to the relief of anticipatory bail. Thus the High court has committed an error in granting anticipatory bail to respondent No.2 accused ignoring the proceedings under Section 82−83 of Cr.PC.
8. Even the observations made by the High Court while granting the anticipatory bail to respondentNo.2 accused that the nature of accusation is arising out of a business transaction and therefore the accused is entitled to the anticipatory bail is concerned, the same cannot be accepted. Even in the case of a business transaction also there may be offences under the IPC more particularly sections 406, 420, 467, 468, etc. What is required to be considered is the nature of allegation and the accusation and not that the nature of accusation is arising out of a business transaction. At this stage, it is required to be noted that respondent No.2 − accused has been charge−sheeted for the offences punishable under MONIKA sections 406 and 420, etc. and a charge−sheet has 2023.06.02 16:10 I attest to the accuracy and integrity of this document 2023:PHHC:080884 CRM-M-715-2023 + 16 cases -36- been filed in the court of learned Magistrate Court.
9. In view of the above and for the reasons stated above, the impugned judgment and order dated14.08.2019 passed by the High Court granting anticipatory bail to respondent No.2 accused is unsustainable and deserves to be quashed and set aside and is accordingly quashed and set aside.
22. In the case of Prem Shankar Prasad (supra), the amount involved was huge and conduct of the accused deplorable. After considering the facts of the case in detail, Hon'ble Supreme Court held that the appellant was not entitled for anticipatory bail.
23. Thus, in the case of Lavesh (supra), while laying down the law of anticipatory bail for absconders, the Hon'ble Apex Court used the words "normally". In other words, if there are exceptional circumstances, even a person who is absconder, can be granted anticipatory bail. Thus, there is no absolute bar for an absconder to seek anticipatory bail or for a person against whom proceedings under Section 82 Cr.P.C. have been initiated but there is a rider for the Court not to grant anticipatory bail to such an accused normally which means that only in the exceptional circumstances, anticipatory bail can be granted to such person. The exceptional circumstances depend upon the facts and circumstances of that case. There cannot be any straight-jacket formula for the same.
24. In the cases in hand, the petitioner is shown to be Sales and Marketing Director in the diary maintained by GBP Group (Annexure R-1). The petitioner had been holding Press Conferences in order to propagate sales of MONIKA 2023.06.02 16:10 I attest to the accuracy and integrity of this document 2023:PHHC:080884 CRM-M-715-2023 + 16 cases -37- the Company. The photographs proving the same have been annexed as Annexure R-2. The petitioner had been receiving awards from national and international dignitaries on behalf of the GBP Group. The petitioner is owner of M/s Green Realtors and Marketers Pvt. Ltd. which entered into an agreement with GBP Group wherein owner of M/s Green Realtors and Marketers Pvt. Ltd. i.e. petitioner was appointed as Sales Director of the GBP Group (Annexure R-3). As per Account statement (Annexure P-8), a total sum of Rs.1,88,76,000/- was deposited by GBP Group in the account of M/s Green Realtors and Marketers Pvt. Ltd. Admittedly, Directors of GBP Group namely Satish Gupta, Pardeep Gupta and Raman Gupta have absconded and left the country. The insolvency proceedings have been initiated against the Company. A person, who is the face of the Company and makes representation to the innocent investors alluring them to invest in the Company and creating hope that they would have their own house one day or the other, and later on, such Company neither returns them their money nor give the property to them, as promised, such a person, who was acting at the behest of the Company, cannot say that he is not the promoter or shareholder of the Company and was merely a Director (Sales) and is not answerable to the innocent investors who had invested believing his representation true and correct. The purpose of investigation is to collect evidence.
25. As per version of the prosecution, many FIRs have been registered against the petitioner and his co-accused. The Directors have fled and left the country. Insolvency proceedings have been started against the Company. MONIKA Only the petitioner can disclose the true facts to the Investigating Agency as 2023.06.02 16:10 I attest to the accuracy and integrity of this document 2023:PHHC:080884 CRM-M-715-2023 + 16 cases -38- to how such a big fraud has taken place with the innocent investors. As per version of prosecution, amount of 40 crores was collected. When so many persons have been cheated, then custodial interrogation of the person, to bring the truth on record, is necessary. Large number of people are victim in different FIRs registered inter-alia against the petitioner. The order refusing or granting anticipatory bail must reflect perfect balance between the conflicting interests. When a person is equipped with favourable order of anticipatory bail, then the interrogation becomes a mere ritual. This view of mine finds support from a judgment passed in State represented by the C.B.I. vs. Anil Sharma reported as 1997 (7) SCC 187 wherein it has been specifically held that :-
"...Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual."
26. Accordingly, keeping in view the gravity of the offence and the fact that many innocent persons have been duped to invest in the Company, I am of the view that granting concession of anticipatory bail to the petitioner may hamper the investigation. So, no ground for grant of anticipatory bail is made out.
27. All the 17 petitions i.e. CRM-M-680-2023, CRM-M-715-2023, CRM-M-771-2023, CRM-M-2787-2023, CRM-M-2820-2023, CRM-M- 2849-2023, CRM-M-2851-2023, CRM-M-2853-2023, CRM-M-2857- 2023, CRM-M-2861-2023, CRM-M-2871-2023, CRM-M-2873-2023, CRM-M-2877-2023, CRM-M-2900-2023, CRM-M-2911-2023, CRM-M-
MONIKA 2023.06.02 16:10 I attest to the accuracy and integrity of this document 2023:PHHC:080884 CRM-M-715-2023 + 16 cases -39-
2913-2023 and CRM-M-2967-2023, filed by petitioner Anupam Gupta are hereby dismissed.
28. However, nothing contained herein above shall be construed as an expression of opinion on the merits of the case.
29. A photocopy of this order be placed on the files of the other connected matters.
June 01, 2023 (GURBIR SINGH)
monika JUDGE
Whether speaking/reasoned ? Yes/No.
Whether reportable ? Yes/No.
MONIKA
2023.06.02 16:10
I attest to the accuracy and
integrity of this document