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2024 DIGILAW 866 (ALL)

Satish Chander Gupta v. State of U. P.

2024-03-20

SAMEER JAIN

body2024
JUDGMENT : 1. Dr. S.B. Maurya, learned AGA-I for the State apprised the Court that he has received the instructions, therefore, instant anticipatory bail application may be finally disposed off. 2. Heard Sri Anoop Trivedi, learned Senior Advocate assisted by Sri Gopal Misra, learned counsel for the applicant, Sri R.P.S. Chauhan, learned counsel appearing on behalf of Union of India and Dr. S.B. Maurya, learned AGA-I for the State. 3. The present anticipatory bail application has been filed on behalf of the applicant to enlarge him on anticipatory bail in Sessions Trial No. 577 of 2020 under Section 447 of the Companies Act arising out of Complaint U/ s 439 (2) R/W, Section 436 (1)(a) & (d) R/W Proviso to Section 212(6) R/ W 212 (14) of the Companies Act, 2013 R/W 621 (1) of the Companies Act, 1956 pending in the Court of Special Judge (Companies Act)/ Additional Sessions Judge, Kanpur Nagar. Preliminary objections raised by Union of India 4. At the very outset, Sri R.P.S. Chauhan, learned counsel appearing on behalf of Union of India raised following preliminary objections:- (a) applicant directly approached this Court for his pre arrest bail under Section 438 Cr.P.C. without approaching the court concerned under Section 438 Cr.P.C. (b) applicant is the resident of United Kingdom (U.K.) and is residing in U.K. and not in India, therefore, there is no apprehension of his arrest. Submissions advanced on behalf of Union of India with regard to preliminary objections:- 5. Learned counsel appearing on behalf of Union of India submitted that applicant straight-way filed instant anticipatory bail application before this Court without approaching the court concerned and no special circumstances has been disclosed by him in this regard, therefore, considering the law laid down by the Full Bench of Five Judges of this Court in the case of Ankit Bharti and others Vs. State of U.P and another 2020 (3) ADJ 575 , the instant anticipatory bail application is not maintainable. 6. He further submits that admittedly applicant is the resident of London (U.K.) and investigation of the case has already been concluded and on the basis of the complaint, he has been summoned and till date no warrant has been issued against him, therefore, applicant is not having any belief of his arrest, therefore, on this ground also the instant anticipatory bail application is not maintainable. 7. 7. He further submits that if applicant is released on anticipatory bail then under the pretext of order of pre-arrest bail, he will never return to India for trial. He further submits that no blanket protection can be given to the applicant under Section 438 Cr.P.C. He further submits that there are several examples in the past, if an accused once fled from India he never turned up to face the legal proceedings. 8. He further submits that it is a fraud under the Companies Act in the tune of crores of rupees and applicant being Ex Director of one of the U.K. firm also involved in the commission of the fraud. 9. He further submits that on the summon issued, applicant can come to India and participate in the court proceedings and on arrival in India if he apprehends that when he will appear before the court concerned, he will be sent to the custody then he can file an application for pre-arrest bail under Section 438 Cr.P.C. and therefore present application is premature. 10. He further submits that instant pre-arrest bail application filed by applicant clearly suggests that applicant is not intended to participate in the court proceedings and under the pretext of order of pre-arrest bail he will never turn up before the trial court. Submissions advanced on behalf of applicant against the preliminary objections 11. Against the preliminary objections raised by learned counsel appearing on behalf of Union of India, learned Senior Advocate appearing on behalf of the applicant submitted that from perusal of the provisions of Section 438 Cr.P.C. it is apparent that anticipatory bail application can be filed either before the court of sessions or before this Court, therefore, if applicant opted to file the anticipatory bail application directly before this Court then he did not commit any illegality and it cannot be said that his anticipatory bail application is not maintainable. 12. He further submits that admittedly applicant is residing in London (U.K.) and he is not residing within the jurisdiction of concerned sessions judge, therefore, even from this angle, he can directly file anticipatory bail application before this Court in view of the judgment passed by learned Single Judge of this Court in case of Vinod Kumar Vs. State of U.P. and another 2019 (12) ADJ 495 . 13. State of U.P. and another 2019 (12) ADJ 495 . 13. He further argued, as per observation made by learned Single Judge of this Court in the case of Vinod Kumar (supra), the anticipatory bail can be filed straight-way to this Court where an accused is not residing within the jurisdiction of the concerned sessions judge faces a threat of arrest. 14. He further submits that the Full Bench of this Court in the case of Ankit Bharti (supra) approved the law laid down by the learned Single Judge of this Court in the case of Vinod Kumar (supra). 15. He further submits that as far as the second objection raised by learned counsel appearing on behalf of Union of India is concerned, merely due to the fact that applicant is residing abroad, it cannot be said that he is not having any apprehension of arrest. He further submits that advancement in investigative technology and communication, the various agencies of investigation could even be deployed to arrest a person outside the country. He placed reliance on the judgment of High Court of Kerala in the case of Vijay Babu Vs. State of Kerala and others 2022 SCC OnLine Ker 3158. 16. He further submits that applicant is 73 years old person and he is willing to participate in the legal proceedings pending in India, therefore, on the basis of summons issued to him, he wants to appear before the court concerned but is having apprehension, if he will appear before the court concerned then he will be taken into custody. 17. He further submits that considering the practice now a days being adopted by the trial courts apprehension of custody raised by the applicant cannot be completely brushed aside. He further submits that even the Apex Court in the case of Mahdoom Bava Vs. Central Bureau of Investigation 2023 SCC OnLine SC 299 has shown its concern in this regard. 18. He further submits that as till date only summons have been issued against the applicant on the complaint, therefore, filing of instant anticipatory bail before this Court itself shows his bona fide and his eagerness to participate in the legal proceedings. 19. He further submits that applicant is law abiding citizen and he does not want to evade any legal process. 19. He further submits that applicant is law abiding citizen and he does not want to evade any legal process. He further submits that during investigation applicant was not arrested, however, on call he twice visited India from United Kingdom and appeared before the Investigating Officer and after the permission of the Investigating Officer he went back U.K., therefore, no presumption can be drawn that if applicant would be released on anticipatory bail then he will not return to India and will not participate in the court proceedings. 20. Learned Senior Advocate appearing on behalf of the applicant further submitted that considering the facts and circumstances of the case, both the preliminary objections raised by learned counsel appearing on behalf of Union of India are devoid of merits and are liable to be dismissed and instant anticipatory bail application of the applicant should be heard on merit. Conclusion 21. I have heard learned counsel for the parties and perused the record of the case. 22. From the record, it reflects that a criminal complaint was filed against the applicant and several others under the provisions of Companies Act. Applicant, is the accused no.54 in the complaint and as per allegation he was Ex Director in a Foreign Entity and he also connived with other entities in running of fraudulent/abusive merchanting trade business and thus caused huge losses of crores of rupees to the bank and is liable to be punished for offence under Section 447 of Companies Act, 2013. 23. Learned counsel appearing on behalf of Union of India raised two preliminary objections. His first objection is that applicant directly approached this Court under Section 438 Cr.P.C. for his pre-arrest bail without approaching the court concerned, therefore, instant anticipatory bail application is not maintainable. 24. Five Judges Full Bench of this Court in the case of Ankti Bharti (supra) held, the anticipatory bail application can be filed before this Court directly but only in special circumstances and special circumstances must necessarily exist and be established as such before jurisdiction of this Court is invoked directly. 25. The Full Bench further observed that it is up to the Hon’ble Judge before whom the anticipatory bail application is placed whether according to him any special circumstances exist to entertain the application of anticipatory bail filed directly before this Court. 26. 25. The Full Bench further observed that it is up to the Hon’ble Judge before whom the anticipatory bail application is placed whether according to him any special circumstances exist to entertain the application of anticipatory bail filed directly before this Court. 26. Therefore, as per five judges Full Bench of this Court an application for pre-arrest bail can only be entertained by this Court directly in only exceptional circumstances and not in routine manner and for entertaining such application directly special circumstances must exist. 27. In case at hand, in the entire anticipatory bail application, applicant did not disclose any special circumstances why he directly approached this Court without approaching the court concerned under Section 438 Cr.P.C., however, in the supplementary affidavit dated 26.11.2023 applicant averred that in view of the provisions of Section 438 Cr.P.C. there is no bar if applicant directly files anticipatory bail application before this Court. In view of this Court, it is not a special circumstance on the basis of which, the instant anticipatory bail application can be entertained directly by this Court. 28. Further, applicant is the resident of London (U.K.) and as per the view expressed by learned Single Judge of this Court in the case of Vinod Kumar (supra), which was approved by the Full Bench of this Court in the case of Ankit Bharti (supra) if an accused resides outside the concerned jurisdiction of sessions judge, then he can file anticipatory bail application directly before this Court if faces threat of arrest. Even five judges full Bench of this Court in case of Ankit Bharti (supra) held that such application must rest on strong foundation with regard to apprehension of arrest. Therefore, threat of arrest of the applicant is necessary for maintainability of his instant anticipatory bail application directly before this Court. 29. The second objection of Union of India is also with regard to belief of arrest of the applicant. Therefore, the core issue is whether applicant is having belief of his arrest. Belief of arrest 30. The belief of arrest of accused is also the condition precedent for pre- arrest bail. The Constitution Bench of the Apex Court in the case of Gurbaksh Singh Sibbia and others Vs. Therefore, the core issue is whether applicant is having belief of his arrest. Belief of arrest 30. The belief of arrest of accused is also the condition precedent for pre- arrest bail. The Constitution Bench of the Apex Court in the case of Gurbaksh Singh Sibbia and others Vs. State of Punjab (1980) 2 SCC 565 also emphasised a lot on it and held that mere fear is not belief of arrest and belief of arrest must be based on concrete facts and it must be clearly reflected from the face on record and without apprehension of arrest, the anticipatory bail application under Section 438 Cr.P.C. should not be considered. 31. The Constitution Bench of the Apex Court in the case of Gurbaksh Singh Sibbia (supra) in paragraph 35 observed:- “35. Section 438 (1) of the Code lays down a condition which has to be satisfied before anticipatory bail can be granted. The applicant must show that he has reason to believe that he may be arrested for a non-bailable offence. The use of the expression reason to believe shows that the belief that the applicant may be so arrested must be founded on reasonable grounds. Mere fear is not belief, for which reason it is not enough for the applicant to show that he has some sort of a vague apprehension that some one is going to make an accusation against him, in pursuance of which he may be arrested. The grounds on which the belief of the applicant is based that he may be arrested for a non-bailable offence, must be capable of being examined by the court objectively, because it is then alone that the court can determine whether the applicant has reason to believe that he may be so arrested. Section 438 (1), therefore, cannot be invoked on the basis of vague and general allegations, as if to arm oneself in perpetuity against a possible arrest. Otherwise, the number of applications for anticipatory bail will be as large as, at any rate, the adult populace. Anticipatory bail is a device to secure the individual's liberty; it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations, likely or unlikely.” 32. The another Constitution Bench of the Apex Court in the case of Sushila Agarwal and others Vs. Anticipatory bail is a device to secure the individual's liberty; it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations, likely or unlikely.” 32. The another Constitution Bench of the Apex Court in the case of Sushila Agarwal and others Vs. State of NCT Delhi and another (2020) 5 SCC 1 reiterated the observation made by the Constitution Bench in the case of Gurbaksh Singh Sibbia (supra) and observed that apprehension of arrest should not be imaginary, therefore, the law is settled, for pre-arrest bail, it is necessary for the accused to show his apprehension of arrest against accusation for non-bailable offences. 33. In case at hand, admittedly applicant is not residing in India and he is resident of London (U.K.). The investigation of the case has already been concluded and on complaint applicant was summoned along with others and till date no warrants has been issued against him. Therefore, question is whether still applicant is having belief of his arrest. 34. The learned Single Judge of Kerala High Court in case of Vijay Babu (supra) on which reliance was placed by applicant, however, observed that investigating agencies can arrest the accused even outside the country but the facts of the present case are distinguishable from the facts of the case of Vijay Babu (supra). 35. In the case of Vijay Babu (supra) it appears that the investigation of the case was pending, therefore, learned Single Judge of the Kerala High Court observed in that context that due to the advancement in investigative technology and communication, the various agencies of investigation could even arrest a person outside the India but in case at hand, investigation has already been concluded and after filing of complaint till date only summons have been issued against the applicant. Therefore, prima facie in the present matter it appears, there is no apprehension of the arrest of applicant who resides in London (U.K.) 36. Further, if applicant truly wants to participate in the legal proceeding in India then on the basis of summon he can arrive India and after arrival if he apprehends his arrest/custody then he can approach under Section 438 Cr.P.C. for his pre-arrest bail. The instant anticipatory bail application, at this stage, appears to be pre-mature. 37. Further, if applicant truly wants to participate in the legal proceeding in India then on the basis of summon he can arrive India and after arrival if he apprehends his arrest/custody then he can approach under Section 438 Cr.P.C. for his pre-arrest bail. The instant anticipatory bail application, at this stage, appears to be pre-mature. 37. Further, this Court finds force in the argument advanced by learned counsel appearing on behalf of Union of India that if blanket protection is given to the applicant under Section 438 Cr.P.C. then possibility cannot be ruled out that he will never return to India. 38. Therefore, considering the facts and circumstances of the case discussed above, in my view, both the preliminary objections raised by Union of India are well founded and instant anticipatory bail application is not maintainable. 39. Accordingly, without expressing any opinion on the merits of the case, the instant anticipatory bail application is rejected.