0

Delhi HC: The accused’s “arrest” or “custody” is a prerequisite for the application of Section 439 of the Cr.P.C.

Case Title : Serious Fraud Investigation Office v. Dura Line India Pvt. Ltd. (DIPL) & Ors.

Case No: CC No. 272/2022

Quorum: Honorable Justice Navin Chawla

Facts of the case:-

Taking a look at the case’s facts, the criminal complaint mentioned above stems from an order issued by the Ministry of Corporate Affairs, Government of India (abbreviated as “MCA”) on December 5, 2018, pursuant to Section 212 (1)(c) of the Act, which commands the respondent to conduct an investigation into the business dealings of the accused company, M/s Dura Line India Pvt. Ltd. (DIPL). The respondent gave the MCA the inquiry report dated 25.03.2020 and a corrigendum dated 19.07.2021 after the inquiry was finished. The MCA granted the required instructions and directions to the respondent to file and begin the complaint against the accused parties, including the applicant(s) herein, via Order dated 19.03.2021, passed under Section 212 (14) of the Act. As a result, the complaint in this case was filed.

Legal Provisions:-

The above complaint has been filed by the respondent herein under Section 439(2) read with Section 436 (1)(a), (d) and Section 436 (2) read with Section 212 (6) and Section 212(15) of the Companies Act, 2013 (hereinafter referred to as the ‘Act’) read with Section 193 of the Cr.P.C., on which, by an order dated 16.07.2022 passed by the learned Trial Court, the Applicant(s) herein has been summoned as an accused for offence under Sections 447 and 448 read With Sections 447, 449, 96 read with Section 99; Section 135 read With Section 450 of the Act as far as applicants Abraham George and Mahendra Gambhir are concerned, and Sections 447 and 448 read With Section 447 of the Act as far as the applicant Yogesh Sudhanshu is concerned.

Appellant Contentions:-

On the other hand, the learned counsel(s) for the applicant(s),setting dependence on the judgments of the preeminent court in Bharat Chaudhary & Anr. V. State of Bihar & Anr., (2003) 8 SCC 77;Ravindra Saxena v. State of Rajasthan, (2010) 1 SCC 684; and of the division seat of this court in P.V. Narsimha Rao v. State (CBI),ILR (1997) I Del 507; and of the facilitate seats of this court in P.V. Narsimha Rao v. State (CBI), 1997 SCC Online Del 19, and Deepak Anand v. State & Anr. 2018 SCC Online Del 11875; and of The Tall Court of Uttrakhand in Saubhagya Bhagat v. State of Uttarakhand & Anr., (Judgment dated 24.08.2023 passed in expectant safeguard application No. 76/2021) yield that, just since a complaint/charge-sheet has been recorded, it cannot be said that an application beneath area 438 of the Cr.P.C. will now not be viable or that there will be no sensible premise for an trepidation within the charged that he should be captured or taken into guardianship once he shows up some time recently the learned trial court in compliance with the summons issued to him. They advance yield that the accommodation of the learned guide for the respondent that the candidates, on their appearance some time recently the learned trial court in reply to the summons, will be taken into ‘custody’ and not ‘arrested’, is misleading, because as ‘custody’ takes after ‘arrest’, as has moreover been clarified within the judgment of the preeminent court in Deepak Mahajan (Supra), depended upon by the learned advise for the respondent.

On the uncommon conditions to be met for being discharged on safeguard beneath area 212(6) of the Act, the learned counsel(s) for the applicant(s) submits that, as within the show case, the candidates were not captured amid the course of examination by the respondent, in terms of the judgment of the Supreme Court in Satender Kumar Antil (Supra) examined along with arrange dated 21.03.2023 within the same procedures, detailed as 2023 SCC Online SC 452, the common standards overseeing safeguard are to be similarly connected to the allow of expectant safeguard and, so, as the applicant(s) were not captured amid the period of examination, they are entitled to allow of expectant safeguard from this court. On the reason for the trepidation of the applicant(s) that they may be taken into guardianship in case they show up some time recently the learned trial court, the learned counsel(s) for the applicant(s) have placed reliance on the judgments of this court in Suman Chadha v. Genuine Extortion Examination Office, 2023 SCC Online Del 4174; Dr. Bindu Rana v. Genuine Extortion Examination Office, 2023 SCC OnLine Del 276; and, Taranjeet Singh Bagga v. Genuine Extortion Examination Office, 2023 SCC Online Del 893, to submit that people against whom comparable complaints were recorded by the respondent some time recently the same learned trial court, they were taken into care, in show disdain toward of them not being captured during the course of examination by the respondent, and they could get safeguard as it were from this court after a prolonged period of imprisonment.

They yield that, subsequently, the dread of the candidates, that they may be captured once they show up some time recently the learned trial court in reply to the summons, cannot be said to be whimsical or without any premise. They encourage yield that there are no affirmations of the applicant(s) being a flight chance or likely to alter with prove or impact witnesses. The learned guide for the candidate in safeguard Appln. 3739/2022-Sh. Yogesh Sudhanshu Kumar assist submits that the Candidate has joined the examination, the trial is likely to require long, the applicant has clean forerunners, may be a senior citizen and may be a Resident of Pune, Maharashtra, having multiple sicknesses.

He submits that the candidate was allowed intervals security vide arrange dated 15.12.2022. There’s no affirmation of him abusing the relief so allowed by this court. He submits that the fabric charges within the complaint relate to period after the candidate had surrendered.

Respondent Contentions

The learned advise for the respondent raised a preparatory protest on the practicality of the show applications. He submits that as the applicant(s) has been summoned on a complaint recorded by the respondent some time recently the learned trial court, an application beneath segment 438 of the Cr.P.C. by the applicant(s) would not be viable; the as it were cure accessible to the applicant(s) is to apply for safeguard beneath segment 439 of the Cr.P.C. The learned direct for the respondent submits that an application beneath segment 438 of the Cr.P.C. is viable as it were where the individual has reason to accept or an trepidation that he may get captured on the allegation of having committed a non-bailable offence. He submits that, in fact, the applicant(s) was not captured some time recently the recording of the complaint.

Once a complaint has been recorded, the learned trial court, after looking into the nature of the allegations that have been made within the complaint and upon hearing the applicant(s), may take the candidate into ‘custody’. He submits that there’s a distinction within the lawful meaning and suggestions of the terms ‘arrest’ and ‘custody’, as has been clarified by the preeminent court in its judgments in Directorate of Requirement v. Deepak Mahajan,(1994) 3 SCC 440 and Sundeep Kumar Bafna v. State of Maharashtra & Anr., (2014) 16 SCC 623.Setting dependence on the judgment of the Preeminent Court in Satender Kumar Antil v. Central Bureau of Examination & Anr. (2022) 10 SCC 51, he submits that the give of safeguard in case of a complaint beneath segment 212 (6) of the Act, is circumscribed by the uncommon conditions endorsed in that and the common rules for thought of an application for safeguard cannot be connected.

Putting dependence on the judgment of the preeminent court in Gurbaksh Singh Sibbia v. State of Punjab (1980) 2 SCC 565, he submits that for allowing expectant safeguard to any individual, it is vital for him to appear that he has reasons to accept that he may get captured. He yield that, in the present case, as the applicant was not captured amid the course of the examination by the respondent. He does not have any reason to accept that he may get captured once. He shows up some time recently the learned trial court in reply to the summons issued to him. He submits that just since the learned trial court.

Few cases, has rejected the application recorded by the denounced in that for being discharged on safeguard, it cannot moreover donate rise to such a conviction within the applicant(s) that in the event that they apply for safeguard some time recently the learned trial court. The same should be rejected and they might be taken into guardianship.

Court Analysis and Judgement:-

In the entire process of investigation leading to the filing of the complaint, the applicant(s) were never arrested by the respondent and it is not disputed that the applicant(s) have cooperated in the investigation. Applying the test as laid down by the Supreme Court in Satender Kumar Antil (Supra), therefore, in my view, the applicant(s) are entitled to grant of anticipatory bail. Needless to state, that nothing in this judgment should be taken to detract from the position that economic offences are serious in nature, and the allegations against the applicant and other co-accused, if proved at the trial, must be met with requisite punishment.

However, that punishment must follow conviction, and the severity of the allegations, by itself cannot be a justification for pre-trial incarceration. It is, therefore, ordered that in case of arrest, the applicant(s) be released on bail in CC No. 272/2022 titled Serious Fraud Investigation Office v. Dura Line India Pvt. Ltd. (DIPL) & Ors. Pending before the learned trial court, subject to furnishing a personal bond in the sum of Rs.50,000/- each, with one local surety each of the like amount to the satisfaction of the learned trial court, And further subject to the following conditions:

i .The applicant(s) shall appear in the trial unless otherwise exempted from personal appearance by the learned trial court.

 ii. The applicant(s) shall not contact, nor visit, nor offer any inducement, threat or promise to any of the prosecution witnesses or other persons acquainted with the facts of case. The applicant(s) shall not tamper with evidence nor otherwise indulge in any act or omission that is unlawful or that would prejudice the proceedings in the pending trial;

iii. In addition to the above conditions, it is specifically directed that the applicant(s) shall also not, whether directly or indirectly, contact or visit, or have any transaction with any of the officials/employees of the banks or financial institutions, companies, entities, etc., who are concerned with the subject matter of the case, whether in India or abroad;

The bail applications are disposed of in the above terms. The pending applications are disposed of as infructuous.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Judgement Analysis Written by – K. Immey Grace

Click here to view the judgement

 

 

0

The supreme court issues new guidelines for the bail application procedure.

Case title: Kusha Duruka Vs. State of Odisha

Case no.: Criminal Appeal No. 303 of 2024

Decided on: 19.01.2024

Quorum: Hon’ble Justice Vikram Nath, Hon’ble Justice Rajesh Bindal

FACTS OF THE CASE:

The current appeal is for bail for the accused, who has been in custody in connection with exclusive and conscious possession of the substance of Ganja.

Application for release on bail pending trial was denied. The appellant filed his first bail application in the High Court after being dissatisfied with  rejection his bail application. However, the appellant’s bail application was dismissed in high court.

The appellant filed the SLP before this Court, expressing his dissatisfaction with the situation. On 06.12.2023, the appellant’s counsel stated that while the current matter was pending before this Court, the High Court granted bail to the appellant in another bench of the high court by order dated 11.10.2023.

He presented with a soft copy of the High Court’s order. On a reading of the aforementioned order, the Court found that it made no mention of the appellant’s second bail application or the SLP’s pending before this Court, for which notice had already been issued.

The appellant filed a second bail application, in which he was granted bail by the High Court via an order dated 11.10.2023. The Court received the original record of this bail application, along with a report dated 08.12.2023 from the High Court and a note from the Hon’ble Judge who heard the case and issued the order on 11.10.2023.

The judge who granted the bail stated in his comments that at the time of hearing the second bail application, the court was not aware of the factum of the SLP’s pending before this court.

 

COURT ANALYSIS AND JUDGMENT:

The court noted that the appellant made no mention of the High Court’s decision on his earlier bail application, as well as the filing of the SLP in this Court. Though, just below the names of the parties, the appellant mentioned the number of his previous bail application. The appellant has notably refrained from discussing the High Court’s decision to reject his previous bail application and his filing of the SLP with this Court, even within the body of the bail application.

During the course of this case, a new bail application was filed not only before the Trial Court but also before the High Court. The appellant was even granted bail by the High Court.

The appellant did not specify that this was his second bail application in the one he filed with the High Court.

The court has established the following mandatory guidelines in an effort to streamline the proceedings, prevent anomalies with regard to bail applications filed in cases pending trial and even for sentence suspension, and to clear up any confusion going forward:

  • Information about the case and copies of the orders issued in the petitioner’s prior, already-decided bail application(s).
  • Information regarding any bail application(s) that the petitioner has filed, which are pending in any court either the court below the one in question or the higher court or, in the event that none are pending, express notice to that effect.
  • A report generated by the system regarding the approved or pending bail application(s) in the relevant criminal case should also be annexed by the court registry. Even in the case of private complaints, the same procedure must be followed because, even in the absence of a FIR number, every case filed in trial courts is given a unique number (CNR No.).
  • The Investigating Officer and any other officers supporting the State Counsel in court should be responsible for informing the State Counsel of any orders, if any, issued by the court regarding various bail applications or other proceedings related to the same criminal case. Additionally, the solicitors representing the parties must behave themselves genuinely as court officers.

The appeal was dismissed, but the appellant’s bail was not cancelled. The court ordered a cost of ₹10,000/- to be deposited with the Mediation and Conciliation Centre attached to the Orissa High Court.

 

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

 

Written by – Surya Venkata Sujith

Click here to read judgement

0

Accused Condemned in Cheque Bounce Case for Failing to Honor Payment Undertaking; Fined Rs 5 Lakhs: Supreme Court

Case Title: Satish P. Bhatt v. The State of Maharashtra & Anr

Case No.: Criminal Appeal No. of 2024 (arising out of Special Leave Petition (CRL.) No.7433 of 2019)

Decided on: 3rd January, 2024

CORAM: THE HON’BLE MR. JUSTICE VIKRAM NATH AND HON’BLE MR. JUSTICE RAJESH BINDAL

Facts of the Case

The case centered around a petitioner who, despite numerous court directives, demonstrated a lackadaisical approach to meeting financial obligations, leading to the revocation of bail and suspension of sentence. Both the petitioner and an intervenor faced convictions under the Negotiable Instruments Act and were sentenced to ten months with a combined liability of Rs. 5 crores. Despite settlement agreements, the petitioner failed to adhere to payment schedules, prompting repeated court interventions. The High Court annulled the bail and sentence suspension due to non-compliance. The appellant contested this decision, asserting that he had fulfilled his part of the settlement. The intervenor, claiming a partnership ratio, alleged fraudulent alteration of the settlement terms.

Issue

The central issue in this case is the complainant’s extended legal struggle since 2007 and the non-realization of intended benefits from previous court orders, leading to the Supreme Court directing the appellant and intervenor to surrender for sentence within four weeks.

Legal Provision

Section 138 of Negotiable Instruments Act, 1881 provides for criminal provision regarding a cheque bounced due to insufficiency of funds.

Court’s analysis and decision

The Supreme Court has affirmed the annulment of the suspension of sentence and bail for individuals convicted of cheque bounce, citing a breach of previous commitments. Justices Vikram Nath and Rajesh Bindal, on the matter, noted that despite the High Court’s order on March 20, 2019, the convicts failed to fulfill the agreed-upon payment. Consequently, the interim protection provided through bail and sentence suspension would be revoked automatically, without the need for court intervention.

The Supreme Court observed that the complainant had been engaged in litigation since 2007 and had not yet benefited from the outcomes of previous judgments. In this context, it was highlighted that “the complainant has still not received not only the benefits of the order dated 03.07.2018 but also of the Trial Court’s order dated 26.08.2011. Despite being entitled to a higher amount as per the Trial Court’s order, he agreed to accept a significantly lesser sum. He has been involved in litigation for almost 16 years since 2007.” Consequently, the Supreme Court instructed the appellant and intervenor to surrender within four weeks to serve the sentence.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Written by- Afshan Ahmad

Click here to read the judgement

0

Former Maharashtra Minister Nawab Malik’s Interim Bail Extends by Six Months in Money Laundering case: Supreme Court

Case Title:   Mohammed Nawab Malik v. the State of Maharashtra

Case No: Criminal Appeal No. 2415 of 2023

Decided on:  11th January, 2024

CORAM: THE HON’BLE MS. JUSTICE BELA M TRIVEDI AND HON’BLE MR. JUSTICE PANKAJ MITHAL

Facts of the Case

On February 23, 2023, Nawab Malik was arrested by the Enforcement Directorate in connection with a money laundering case related to the notorious underworld figure Dawood Ibrahim and his associates. According to the investigative agency, Malik collaborated with a member of the D-gang, Haseena Parker (Ibrahim’s sister), and two others to fraudulently acquire a property in Mumbai’s Kurla area between 1999 and 2006. The agency asserts that since Parkar managed the illicit operations of the notorious gangster and global terrorist, the funds allegedly paid by Malik to her were ultimately utilized for terrorist financing. Consequently, charges under the Prevention of Money Laundering Act were imposed on the former legislator.

In November, 2023, Malik sought bail from a special court, but his request was denied. Due to his worsening health, Malik has been under custody in a private hospital for ongoing medical monitoring. In a subsequent appeal to the Bombay High Court, concerns were raised about the possibility of granting bail in light of the stringent provisions of Section 45 of the Prevention of Money Laundering Act. Ultimately, on July 13, Justice Anuja Prabhudessai, presiding over a single-judge bench, declined to provide temporary bail to Malik. The court decided to revisit the matter on its merits after a two-week interval.

Dissatisfied with the decision of the high court, the leader of the Nationalist Congress Party has appealed to the Supreme Court.

Issue

Whether the Former Maharashtra Minister Nawab Malik’s interim bail can be extended on medical grounds in Money Laundering case?

Court’s analysis and decision

The Supreme Court has prolonged the temporary release initially granted to former Maharashtra minister Nawab Malik by an additional six months. Malik, arrested by the Directorate of Enforcement (ED) on February 23, 2022, in a money laundering case, had been granted interim bail in August of the same year. Justices Bela M Trivedi and Pankaj Mithal presided over the hearing of a special leave petition filed by Malik against a July 2023 Bombay High Court order that denied the Nationalist Congress Party (NCP) legislator’s plea for interim bail on medical grounds.

Initially, the senior NCP leader had received a two-month interim bail on medical grounds in August. This period was subsequently extended by three months in October, following information that Malik’s health had not improved, and he was undergoing treatment for kidney-related and other ailments at a private hospital in Mumbai. On both occasions, the Enforcement Directorate did not oppose the court’s decision to grant relief.

During the hearing considering a further extension of interim relief, Additional Solicitor-General SV Raju, representing the central agency, stated,

“This request may be considered, and on medical grounds, an extension may be given.”

Granting Malik’s request for a six-month extension of interim bail, the bench declared,

“…Learned additional solicitor-general has no objection. The interim prayer is granted, and the application is allowed. Interim bail is extended for a further period of six months as prayed for. List the main matter after six months.”

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Written by- Afshan Ahmad

0

Declined bail application due to severity of the crime without commenting on the merits of the case: M.P. High Court

Case Title: Devraj Dangi v. State of Madhya Pradesh

Case No: Misc. Criminal Case No. 51860 of 2023

Decided on: 6th December, 2023

CORAM: THE HON’BLE MR. JUSTICE ANIL VERMA

Facts of the Case

As per the prosecution story, prosecutrix lodged an FIR at P.S. Boda, District Rajgarh by stating that two years prior to the incident, her father /applicant naked his minor daughter by putting off her clothes and committed rape upon her. On 03.03.2023, at about 2:30 AM, present applicant again repeated the same act and tried to rape her. A case has been registered against the present applicant.

The applicant has denied the allegations and claimed to be innocent. The prosecutrix, during cross-examination, did not support the prosecution’s story and turned hostile. The applicant has sought bail, citing false implication and the prosecutrix’s lack of support for the prosecution’s story. On the other hand, the State has opposed the bail application, emphasizing the severity of the alleged crime.

Legal Provision

Section 439 of the Code of Criminal Procedure, 1973 grants special powers to the High Court and the Court of Session regarding bail.  The High Court or Court of Session may direct that any person accused of an offense and in custody be released on bail, and if the offense is of the nature specified in sub-section (3) of Section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section. The High Court or Court of Session may also set aside or modify any condition imposed by a Magistrate when releasing a person on bail.

Issue

Whether the applicant should be granted regular bail under Section 439 of the Code of Criminal Procedure, 1973 relating to the commission of offence punishable under Sections 376(2)(n), 376(3), 376(1), 376(2)(f), 506 and 376(AB) of IPC and Section 6 of POCSO Act?

Court’s Analysis and Decision

The Hon’ble High Court of Madhya Pradesh has rejected the first bail application filed by the applicant under Section 439 of the Code of Criminal Procedure, 1973 on the ground that prosecutrix is a minor and innocent girl of 12 years of age and she was raped by her father. The trust and faith that a young girl would normally have in her father and the sanctity of family relationships were shattered by the heinous, inhumane and shameful act of her father.

The prosecutrix has not supported the prosecution’s story during cross-examination. The cross-examination took place after 10 days of examination-in-chief, which could have influenced her testimony by her father/applicant and other family members. The MLC report, which supports the prosecutrix’s statement, indicates redness and swelling over the labia minora and clitoris and her private parts. In the query report, concerned Doctor opined that hymen was found torn and swelled due to the extreme pressure of penis of someone.

In view of the barbaric sexual assault and severity of the instant crime, without commenting on the merits of the case, the Court is not inclined to grant bail to the present applicant.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Written by- Afshan Ahmad

Click to view the judgement

1 2 3 7