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2023 DIGILAW 1128 (ALL)

Manoj Kumar Bathla v. State of U. P.

2023-04-24

NALIN KUMAR SRIVASTAVA

body2023
JUDGMENT Nalin Kumar Srivastava, J. This application has been moved on behalf of the applicant -Manoj Kumar Bathla with the prayer to quash the impugned order dated 10.3.2023 passed by the Sessions Judge, Meerut whereby anticipatory bail granted to the applicant vide order dated 16.3.2022 has been cancelled and further to grant anticipatory bail to the applicant in Case Crime No. 0574 of 2019, Criminal Case No. 23164 of 2021 under Sections 406, 420, 467, 468, 471 IPC, Police Station Medical College, District Sambhal. 2. Heard Shri Manish Tiwary, learned Senior Advocate assisted by S/Shri Pranav Tiwari and Yagyavalk Pandey, learned counsel for the applicant, Shri Sushil Shukla, learned counsel for the informant as well as the learned A.G.A. for the State and perused the record. 3. It has been submitted by the learned Senior Counsel appearing for the applicant that the order dated 10.3.2023, by which the anticipatory bail granted to the applicant vide order dated 16.3.2022 has been cancelled, is bad in the eyes of law and as a matter of fact the applicant did not flout any of the conditions imposed by the Court concerned while granting anticipatory bail to the applicant. It is further submitted that while granting anticipatory bail vide aforesaid order dated 16.3.2022 a total of eight conditions were imposed upon the applicant and he complied with all the conditions. It is vehemently submitted that the impugned order dated 10.3.2023, whereby anticipatory bail granted to the applicant has been cancelled, reflects that the Sessions Judge, Meerut has emphasized mainly upon noncompliance of condition no.8 imposed by the said order wherein it was mentioned that the applicant has to file an undertaking to the effect that he will ensure compliance of the order passed by the National Company Law Tribunal (in short 'the NCLT'). In this case, it is submitted that after passing the order dated 16.3.2022, no further order was passed by the NCLT and hence, there was no occasion for the applicant for non-compliance of any further order passed by the NCLT. It is next submitted that the Sessions Judge, Meerut has impressed upon the orders passed by the NCLT prior to passing of the order dated 16.3.2022 and non-compliance of the said earlier orders has been made a substantial ground for cancelling the anticipatory bail. It is next submitted that the Sessions Judge, Meerut has impressed upon the orders passed by the NCLT prior to passing of the order dated 16.3.2022 and non-compliance of the said earlier orders has been made a substantial ground for cancelling the anticipatory bail. It is, thus, vehemently submitted that said approach of the Sessions Judge, Meerut was not tenable in law, as no order can be made effective retrospectively. It is also submitted that if some orders were passed by the NCLT in the matter pending before it between the parties to the litigation, it was for the NCLT to take proper action in respect of non-compliance of the same. A criminal court cannot be said to be an executing court for execution of the orders passed by any other forum / authority. It is further submitted that the applicant has not repeated any alike offences, as were levelled against him in the F.I.R. of the present case and, as such, he has not flouted condition no.6 as well imposed upon him vide order dated 16.3.2022, which has also been made a ground for cancellation of anticipatory bail granted to the applicant by the Court concerned by aforesaid order. It is also submitted that since anticipatory bail was granted to the applicant by the Sessions Court Meerut till the conclusion of trial, it is explicitly clear that the Sessions Court concerned expressed its view in favour of the applicant and found sufficient and reasonable grounds for grant of anticipatory bail to him till the end of trial. Lastly, it is submitted that the impugned order dated 10.3.2023 deserves to be set-aside and cancelled and further the applicant be granted anticipatory bail till the end of trial. 4. Per contra, learned counsel for the informant as well as the learned AGA have submitted that the order dated 16.3.2022, whereby anticipatory bail was granted to the applicant imposing certain conditions upon him, reflects that a total of eight conditions were imposed upon him out of which Condition No.1 directed the applicant to furnish a bank guarantee of the value of Rs. Five Crores. Since Rupees Five Crores was a huge amount, an application was moved by the applicant to exempt him to comply with the said condition no. 1 or the amount of bank guarantee be lessened. Five Crores. Since Rupees Five Crores was a huge amount, an application was moved by the applicant to exempt him to comply with the said condition no. 1 or the amount of bank guarantee be lessened. It is further submitted that vide order dated 28.6.2022, the Court concerned cancelled Condition No.1 to furnish the bank guarantee to the tune of Rupees Five Crores and further the applicant was directed to furnish a properly stamped and notorised indemnity bond in sum of Rupees Five Crores mentioning therein that he will not create any third party right, charge, mortgage or any other lien in any manner of properties held by him and mentioned in the indemnity bond, either in his own name or jointly with others till the matter is finally decided. It is further submitted that for the other conditions imposed vide order dated 16.3.2022, no objection or inability to fulfill the same was shown by the applicant rather he furnished an undertaking before the Court concerned for compliance of all the conditions imposed by the aforesaid order. It is further submitted that in the impugned order dated 10.3.2023, the Sessions Judge, Meerut has narrated several facts in respect of fraudulent and criminal acts committed by the applicant whereas he was directed not to repeat the similar offence again. The impugned order dated 10.3.2023 consists of many illustrations which go to show that the applicant has repeatedly committed the same offence, commission of which was made prohibited by condition no.6 imposed by the Court concerned by order dated 16.3.2022. It is also submitted that from the impugned order it also reflects that all the orders of NCLT, whether passed prior to 16.3.2022 or subsequent thereto, have to be complied with by the applicant. It is further submitted that since the applicant never made any submission before the Court concerned regarding the unsustainability or ambiguity of the said condition, it was an estoppel against him and he was bound to obey the aforesaid condition as well as the other conditions imposed by the Court concerned. On the basis of aforesaid submissions, prayer has been made to reject the present anticipatory bail application. 5. I have considered the rival submissions made by the learned counsel for the parties. 6. On the basis of aforesaid submissions, prayer has been made to reject the present anticipatory bail application. 5. I have considered the rival submissions made by the learned counsel for the parties. 6. In this matter, from a perusal of the record, it reveals that in the matter of Anticipatory Bail Application No. 591 of 2022 in case crime no. 574 of 2019, under Sections 406, 420, 467, 468, 471 IPC, P.S. Medical College, District Meerut applicant was granted anticipatory bail vide order dated 16.3.2022 passed by the Sessions Judge, Meerut till end of trial, however, certain conditions were imposed upon the applicant while granting the anticipatory bail to him. Subsequently, on an application moved by the informant, the said anticipatory bail was cancelled by the impugned order dated 10.3.2023 passed by the Sessions Judge, Meerut on the ground of flouting of some of the conditions, which were imposed upon the applicant while granting anticipatory bail to him. 7. At the very outset, it is to be determined whether the order dated 10.3.2023 whereby the anticipatory bail granted to the applicant vide order dated 16.3.2022 was cancelled, is sustainable in the eyes of law or not. 8. From the perusal of the impugned order, it is found that the learned Sessions Judge, Meerut has emphasized on this condition that the accused applicant is not only flouting the orders of Sessions Court but also of NCLT and for this observation, the concerned Court has impressed upon many factual aspects of the matter. The Court has observed that the applicant is not deliberately providing any record and account and still misusing the bank accounts of the Company to the detriment of the complainant. It is also mentioned in the said order that as the applicant is having actual control on the Company of the parties, he is passing the books of the Company as the books of his private firm and usurping the money received from sale of such books. It has also been narrated in the said order that after the grant of anticipatory bail to the applicant the Company which provided accounting software allegedly cancelled licence resulting into the accounts becoming inaccessible and the physical records were misplaced from the scooter of the accused, the staff became non-cooperative and the bank account of the Company was being used by the accused applicant as per his own convenience. It is also mentioned in the impugned order that it is clearly the act of accused to refuse providing accounts and the record for proper adjudication and in these circumstances the Court cannot shut its eyes regarding continuous violation and misuse of liberty of the anticipatory bail by the accused. 9. In the impugned order dated 10.3.2023, condition Nos. 6 and 8 have been emphasized as non-complied with by the accused applicant. The said conditions are as under : ^^6- tks vfHk;ksx vkosnd ij yxk;k x;k gS] oSlk gh vU; dksbZ vijk/k vkosnd dkfjr ugha djsxkA 8- ;g fd vkosnd bl vk'k; dh vUMjVsfdax izLrqr djs fd ,u-lh-,y-Vh }kjk ikfjr vkns'k dk ikyu lqfuf'pr djrk jgsxkA** 10. So far as Condition No.6 is concerned, it relates to any other offence of the similar nature committed by the applicant. 11. It is not in dispute that charge sheet into the matter has been filed. In one part of the impugned order, various observations have been made by the Sessions Judge, Meerut in respect of the alleged violation of Condition No.6 by the accused / applicant and while doing so the Court concerned entered into the history of dispute between the parties and a chain of events has been sketched but it lacks a cogent reasoning. This Court does not find any justification in the aforesaid observations made by the Sessions Judge, Meerut capable of making the accused / applicant liable for violative of aforementioned Condition No.6. Whether any criminal matter against the present accused / applicant subsequent to the order dated 10.3.2022, resulted into charge sheet, is not clear from the impugned order. Charge sheet has already been submitted in the present case and now the trial is going on before the Magistrate concerned. Thus, to hold that the Condition No.6 imposed vide order dated 10.3.2022 was violated by the accused / applicant, is not correct. 12. As regards to Condition No.8 imposed vide order dated 16.3.2022, from the perusal of the record, it transpires that both the parties are business persons having commercial company as a partnership firm and litigations are going on before the NCLT between them. Several orders have been or are to be passed by the NCLT in the aforesaid matters. 12. As regards to Condition No.8 imposed vide order dated 16.3.2022, from the perusal of the record, it transpires that both the parties are business persons having commercial company as a partnership firm and litigations are going on before the NCLT between them. Several orders have been or are to be passed by the NCLT in the aforesaid matters. In the impugned order, the Sessions Judge, Meerut has observed that the accused applicant is working in such a manner on account of which the Company is going into loss and all the working conditions have become hampered due to lack of vigilance and inactivity on the part of the applicant and he is continuously violating the orders of NCLT, already passed in the mater pending before it between the parties. 13. This fact is also to be taken into account that what orders to be passed by the NCLT in future is not a subject concerning to the Sessions Court sitting in the forum of anticipatory bail. The NCLT in itself is empowered to enforce its own orders under the provisions of the Companies Act. The NCLT for the execution of its orders or to meet out the conditions, where its orders are flouted, is not dependent upon any other forum / Court and is competent enough to meet out this contingency. Also, it was not a genuine condition to ask the applicant to comply with all previous orders, which were already passed by the NCLT and which might be subjudiced too in any higher forum. 14. The aforesaid situation takes this Court to the direction of considering as to whether a Criminal Court may act like an Executing Court for any other forum. 15. In Dilip Singh v. State of Madhya Pradesh and another, (2021) 2 SCC 779 , the Hon'ble Apex Court has held that : "A criminal court, exercising jurisdiction to grant bail / anticipatory bail, is not expected to act as a recovery agent to realise the dues of the complainant, and that too, without any trial." 16. This dictum was reitrated in Udho Thakur and another v. State of Jharkhand and another, 2022 SCC Online SC 1712, wherein the Hon'ble Supreme Court held that : "4. This dictum was reitrated in Udho Thakur and another v. State of Jharkhand and another, 2022 SCC Online SC 1712, wherein the Hon'ble Supreme Court held that : "4. Even if we take the submissions of the learned counsel for the contesting respondent on its face value, we are clearly of the view that in essence, the petitions seeking relief of pre-arrest bail are not money recovery proceedings and, ordinarily, there is no justification for adopting such a course that for the purpose of being given the concession of pre-arrest bail, the person concerned apprehending arrest has to make payment." 17. It has been further held that : "Having regard to the circumstances, in our view, the said condition of depositing a sum of Rs. 7,50,000/- for the purpose of granting the relief of pre-arrest bail cannot be approved and else, the order granting bail deserves to be maintained." 18. In the light of the aforesaid proposition of law, this Court is not hesitant to hold that Condition No.8 imposed vide order dated 16.3.2022 is a vague and ingenuine condition and not sustainable as such. 19. In umpteen of cases, the Hon'ble Apex Court as well as the High Courts have laid down certain parameters to deal with the matters pertaining to cancellation of bail / anticipatory bail. 20. In Savitri Agarwal and others v. State of Maharashtra and another, (2009) 8 SCC 325 , the Hon'ble Apex Court has held that very cogent and overwhelming circumstances are necessary for an order directing cancellation of bail already granted. It has been further held that rejection of bail in non-bailable case at the initial stage and cancellation of bail are required to be considered and dealt with on different basis. 21. In Dolat Ram and others v. State of Haryana, (1995)1 SCC 349 , the Hon'ble Apex Court held that : "4. Rejection of bail in a non-bailable case at the initial stage and the cancellation of bail so granted, have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted. Rejection of bail in a non-bailable case at the initial stage and the cancellation of bail so granted, have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted. Generally speaking, the grounds for cancellation of bail, broadly (illustrative and not exhaustive) are: interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. The satisfaction of the court, on the basis of material placed on the record of the possibility of the accused absconding is yet another reason justifying the cancellation of bail. However, bail once granted should 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 " 22. On the subject, the Delhi High in Charu Soneja v. State (NCT of Delhi) and others (Criminal M.C. 2050 of 2021), decided on 3.1.2022 has held like this : "17. There is a significant difference between an order rejecting an application for bail and an order for cancellation of bail. An order rejecting a plea for bail in non-bailable offences is in the discretionary domain of the court and such a case can be decided without delving into details, it can be rejected simpliciter on the gravity of the offence and the perception that liberty, if granted, will be abused by the accused. Whereas in the case of cancellation, the court is called upon to extinguish the liberty that has been formerly granted. A Court must tread with utmost circumspection, and only after an in-depth examination of the situation and new emergent facts and on finding supervening circumstances and overwhelming evidence that the accused has been abusing the liberty granted to him by the court, should the court then exercise its jurisdiction in seizing the liberty of an accused undertrial. Another reason for the court to be more circumspect in setting aside an order granting bail is that, it involves review of a well considered, reasoned judicial order granting bail. Personal liberty is one of the cherished constitutional freedoms. Another reason for the court to be more circumspect in setting aside an order granting bail is that, it involves review of a well considered, reasoned judicial order granting bail. Personal liberty is one of the cherished constitutional freedoms. Once granted to an accused pending completion of the trial, it must only be retracted in the face of grave and exacerbating circumstances. The party challenging bail already given needs to demonstrate, by showing evidence and instances, that the person enlarged on bail has been threatening the victim and may consequently cause personal harm to the victim or her family, is tampering with evidence or influencing prosecution witnesses to the extent that it would vitiate the trial and lead to a miscarriage of justice." 23. The Court finds some illustrative grounds in Raghubir Singh and others v. State of Bihar, (1986) 4 SCC 481 over this issue wherein it was observed that "it is pertinent to mention here that bail can be cancelled where (i) the accused misuses his liberty by indulging in similar criminal activity, (ii) interferes with the course of 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 scarce by going underground or becoming unavailable to the investigating agency, (vii) attempts to place himself beyond the reach of his surety, etc. The above grounds are illustrative and not exhaustive. It must also be remembered that rejection of bail stands on one footing but cancellation of bail is a harsh order because it interferes with the liberty of the individual and hence it must not be lightly resorted to." 24. The impugned order is not clear on the point as to how the Court concerned came to the conclusion that a fair trial is not possible if the accused is allowed to retain his freedom of anticipatory bail during trial. It also reveals that the Court concerned travelled beyond its jurisdiction and placed reliance upon the materials outside the record which were not relevant at that stage. How the Court concerned was sure that the applicant was trying to win over the witnesses of the case and in this way the fair trial of the case was not possible is an issue which remains illusive in the impugned order. 25. How the Court concerned was sure that the applicant was trying to win over the witnesses of the case and in this way the fair trial of the case was not possible is an issue which remains illusive in the impugned order. 25. In view of the aforesaid discussions and the law governing the subject, the Court is of the opinion that the impugned order dated 10.3.2023 passed by the Sessions Judge, Meerut is not sustainable in law and the same is liable to be set-aside. The impugned order dated 10.3.2023 is accordingly set-aside. 26. So far as the question of grant of anticipatory bail to the applicant is concerned, it is evident from the perusal of the record that during the course of investigation, anticipatory bail was granted to the applicant by the Additional Sessions Judge / Special Judge (SC/ST Act), Meerut vide order dated 30.7.2021. The order dated 16.3.2022 passed by the Sessions Judge, Meerut also verifies this fact that the said liberty was not misused by the applicant till filing of the police report under Section 173(2) CrPC before the Competent Court. After filing of the charge sheet in the matter, no custodial interrogation from the applicant appears to be required in the facts and circumstances of the present case. The dispute between the parties relates to financial transactions, which took place between them regarding the Company of the informant and the applicant in the name of 'G.R. Bathla Publications Private Limited' and in this respect F.I.R. was lodged regarding embezzlement of Rs. 6.5 Crores against the applicant. It was alleged in the F.I.R. that the money of the Company was illegally deposited by the applicant in the bank accounts of his sons Sugam Bathla and Madhur Bathla, wife Rachna Bathla and in his own bank account on different dates. It also reveals from the perusal of the record that the dispute between the parties is still pending before the NCLT and several directions have been issued by the NCLT to the parties in the matter. 27. In Sushila Aggarwal and others v. State (NCT of Delhi) and another, (2020) 5 SCC 1 , the Hon'ble Apex Court has settled the controversy finally by holding the anticipatory bail need not be of limited duration invariably. In appropriate case, it can continue upto conclusion of trial. 28. 27. In Sushila Aggarwal and others v. State (NCT of Delhi) and another, (2020) 5 SCC 1 , the Hon'ble Apex Court has settled the controversy finally by holding the anticipatory bail need not be of limited duration invariably. In appropriate case, it can continue upto conclusion of trial. 28. It has been further held therein that anticipatory bail granted can, depending on the conduct and behaviour of the accused, continue after filing of the charge sheet till end of trial. 29. It has been further held by the Hon'ble Apex Court that while considering an application for grant of anticipatory bail, the court has to consider the nature of the offence, the role of the person, the likelihood of his influencing the course of investigation, or tampering with evidence including intimidating witnesses, likelihood of fleeing justice, such as leaving the country, etc. It has further been held that Courts ought to be generally guided by considerations such as the nature and gravity of the offences, the role attributed to the applicant, and the facts of the case, while considering whether to grant anticipatory bail, or refuse it. Whether to grant or not is a matter of discretion. 30. Considering the settled principles of law regarding anticipatory bail, nature of accusation, role of applicant and all attending facts and circumstances of the case, without expressing any opinion of the merits of the case, in my view, it is a fit case for anticipatory bail to the applicant till the end of trial. 31. In the event of arrest of the applicant in Criminal Case No. 23164 of 2021 under Sections 406, 420, 467, 468, 471 IPC, Police Station Medical College, District Sambhal, he shall be released on anticipatory bail on his furnishing a personal bond of Rs.50,000/-with two sureties each in the like amount to the satisfaction of the Court concerned with the following conditions:- (i) The applicant shall make himself available before the Court concerned on the date fixed in the matter and will cooperate in the trial. (ii) The applicant shall not directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or to any police office. (ii) The applicant shall not directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or to any police office. (iii) The applicant shall not leave India without the previous permission of the Court and if he has passport, the same shall be deposited by him before the S.S.P./S.P. concerned. (iv) In case of default of any of the conditions, the same may be a ground for cancellation of protection granted to the applicant. 32. With the above observations, the anticipatory bail application stands disposed of accordingly.