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2025 DIGILAW 165 (HP)

Nitin Srivastav v. State of Himachal Pradesh

2025-01-10

RAKESH KAINTHLA

body2025
JUDGMENT : Rakesh Kainthla, J. The petitioner has filed the present petition for seeking regular bail. It has been asserted that the petitioner was falsely implicated in FIR No. 206 of 2021, dated 23.8.2021, registered at Police Station, Baddi, District Solan, H.P. for the commission of offences punishable under Sections 420, 406, 120-B, and 201 of the Indian Penal Code (IPC). The petitionerhas been in judicial custody since 30.7.2024. The petitioner was falsely implicated. The complaint was filed against Arise India Jewel Real Private Limited and others. The petitioner has been implicated as a Director of the company, but he is not a Director as per the copy of the Article of Association. No useful purpose would be served by detaining the petitioner in Judicial custody. The petitioner would abide by all the terms and conditions, which the Court may impose. Hence the petition. 2. The petition is opposed by filing a status report asserting that the informant made a complaint stating that accused No. 1 is a registered Company and a legal entity. The petitioner is one of the Directors and is responsible for the daily affairs of the Company. The Company opened a branch at Baddi and induced the people to invest with the assurance of paying heavy interest. The informant invested a sum of Rs.11,27,000/-. The other people also invested. The total investment was Rs.1,50,00,000/-. The Company shut down the branch in February 2020. The money was not paid to the investors. The salary was not paid to the employees. Therefore, it was prayed that an action be taken. The police registered the FIR and investigated the matter. The presence of the petitioner was secured by way of a production warrant. The Company was investing in real estate and the companies manufacturing fast-moving consumer goods products. The investment failed due to the COVID-19 Pandemic. Six FIRs were registered against the petitioner and the Company. Anirudh Prasad is yet to be arrested. The matter was listed for consideration of charge on 21.12.2024. 3. I have heard Ms. Kanta Thakur, learned counsel for the petitioner and Mr. Lokender Kutlehria, learned Additional Advocate General, for the respondent-State. 4. The investment failed due to the COVID-19 Pandemic. Six FIRs were registered against the petitioner and the Company. Anirudh Prasad is yet to be arrested. The matter was listed for consideration of charge on 21.12.2024. 3. I have heard Ms. Kanta Thakur, learned counsel for the petitioner and Mr. Lokender Kutlehria, learned Additional Advocate General, for the respondent-State. 4. Ms Kanta Thakur, learned counsel for the petitioner, submitted that the petitioner is not the Director of the Company, which is evident from the Articles of Association, which shows the names of Anirudh Prasad Tripathi and Bhola Nath Sahni as Directors of the Company. The petitioner cannot be held liable by applying the principle of vicarious liability because no such principle applies in criminal law. Therefore, she prayed that the present petition be allowed and the petitioner be released on bail. 5. Mr Lokender Kutlehria, learned Additional Advocate General for the respondent-State, submitted that the petitioner is one of the Directors of the Company and he is liable by virtue of his position in the Company. Therefore, he prayed that the present petition be dismissed. 6. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 7. The parameters for granting bail were considered by the Hon’ble Supreme Court in Ramratan v. State of M.P., 2024 SCC OnLine SC 3068, wherein it was observed as under: - “12. The fundamental purpose of bail is to ensure the accused's presence during the investigation and trial. Any conditions imposed must be reasonable and directly related to this objective. This Court in Parvez Noordin Lokhandwalla v. State of Maharastra (2020) 10 SCC 77 observed that though the competent court is empowered to exercise its discretion to impose “any condition” for the grant of bail under Sections 437(3) and 439(1)(a) CrPC, the discretion of the court has to be guided by the need to facilitate the administration of justice, secure the presence of the accused and ensure that the liberty of the accused is not misused to impede the investigation, over-awe the witnesses or obstruct the course of justice. The relevant observations are extracted herein below: “14. The language of Section 437(3) CrPC, which uses the expression “any condition … otherwise in the interest of justice” has been construed in several decisions of this Court. The relevant observations are extracted herein below: “14. The language of Section 437(3) CrPC, which uses the expression “any condition … otherwise in the interest of justice” has been construed in several decisions of this Court. Though the competent court is empowered to exercise its discretion to impose “any condition” for the grant of bail under Sections 437(3) and 439(1)(a) CrPC, the discretion of the court has to be guided by the need to facilitate the administration of justice, secure the presence of the accused and ensure that the liberty of the accused is not misused to impede the investigation, overawe the witnesses or obstruct the course of justice. Several decisions of this Court have dwelt on the nature of the conditions which can legitimately be imposed both in the context of bail and anticipatory bail.” (Emphasis supplied) 13. In Sumit Mehta v. State (NCT of Delhi) (2013) 15 SCC 570 , this Court discussed the scope of the discretion of the Court to impose “any condition” on the grant of bail and observed in the following terms:— “15. The words “any condition” used in the provision should not be regarded as conferring absolute power on a court of law to impose any condition that it chooses to impose. Any condition has to be interpreted as a reasonable condition acceptable in the facts permissible in the circumstance and effective in the pragmatic sense and should not defeat the order of grant of bail. We are of the view that the present facts and circumstances of the case do not warrant such extreme condition to be imposed.” (Emphasis supplied) 14. This Court, in Dilip Singh v. State of Madhya Pradesh (2021) 2 SCC 779 , laid down the factors to be taken into consideration while deciding the application for bail and observed: “ 4. It is well settled by a plethora of decisions of this Court that criminal proceedings are not for the realisation of disputed dues. It is open to a court to grant or refuse the prayer for anticipatory bail, depending on the facts and circumstances of the particular case. It is well settled by a plethora of decisions of this Court that criminal proceedings are not for the realisation of disputed dues. It is open to a court to grant or refuse the prayer for anticipatory bail, depending on the facts and circumstances of the particular case. The factors to be taken into consideration while considering an application for bail are the nature of the accusation and the severity of the punishment in the case of conviction and the nature of the materials relied upon by the prosecution; reasonable apprehension of tampering with the witnesses or apprehension of threat to the complainant or the witnesses; the reasonable possibility of securing the presence of the accused at the time of trial or the likelihood of his abscondence; character, behaviour and standing of the accused; and the circumstances which are peculiar or the accused and larger interest of the public or the State and similar other considerations. 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.” (Emphasis supplied) 8. The present petition has to be decided as per the parameters laid down by the Hon’ble Supreme Court. 9. It is an admitted case that accused No.1 is a Company. It had opened the offices and invited the deposits. The petitioner is sought to be held liable by virtue of his being a Director. The Article of Association on record does not show him to be a Director. Therefore, the very premise for implicating the petitioner is missing. 10. It was held in Keki Hormusji Gharda v. Mehervan Rustom Irani (2009) 6 SCC 475 : AIR 2009 SC 2594 that the Indian Penal Code does not recognise the vicarious liability of a person for the acts of others. It was observed: “Penal Code, 1860, save and except some matters does not contemplate any vicarious liability on the part a person. Commission of an offence by raising a legal fiction or by creating a vicarious liability in terms of the provisions of a statute must be expressly stated. The Managing Director or the Directors of the Company, thus, cannot be said to have committed an offence only because they are holders of offices”. 11. Commission of an offence by raising a legal fiction or by creating a vicarious liability in terms of the provisions of a statute must be expressly stated. The Managing Director or the Directors of the Company, thus, cannot be said to have committed an offence only because they are holders of offices”. 11. This position was reiterated in Sunil Bharti Mittal v. Central Bureau of Investigation: (2015) 4 SCC 609 : AIR 2015 SC 923 wherein it was held: “No doubt, a corporate entity is an artificial person which acts through its officers, directors, managing director, chairman, etc. If such a company commits an offence involving mens rea, it would normally be the intent and action of that individual who would act on behalf of the company. It would be more so when the criminal act is that of conspiracy. However, at the same time, it is the cardinal principle of criminal jurisprudence that there is no vicarious liability unless the Statute specifically provides so. Thus, an individual who has perpetrated the commission of an offence on behalf of a company can be made accused, along with the company, if there is sufficient evidence of his active role coupled with criminal intent. The second situation in which he can be implicated is in those cases where the statutory regime itself attracts the doctrine of vicarious liability by specifically incorporating such a provision. When the company is the offender, vicarious liability of the Directors cannot be imputed automatically, in the absence of any statutory provision to this effect”. 12. Therefore, it is highly doubtful that the petitioner can be held vicariously liable for the acts of the Company. 13. The petitioner was arrested on 30.07.2024, and the matter was listed for consideration of charges. This shows that the trial has not commenced. The conclusion of the trial is likely to take time, and no fruitful purpose would be served by detaining the petitioner in custody. 14. Consequently, the present petition is allowed, and the petitioner is ordered to be released on bail in the sum of Rs.2,00,000/- with two sureties of the like amount to the satisfaction of the learned Trial Court. The conclusion of the trial is likely to take time, and no fruitful purpose would be served by detaining the petitioner in custody. 14. Consequently, the present petition is allowed, and the petitioner is ordered to be released on bail in the sum of Rs.2,00,000/- with two sureties of the like amount to the satisfaction of the learned Trial Court. While on bail, the petitioner will abide by the following terms and conditions: - (I) The petitioner will not intimidate the witnesses, nor will he influence any evidence in any manner whatsoever; (II) The petitioner shall attend the trial in case a charge sheet is presented against him and will not seek unnecessary adjournments; (III) The petitioner will not leave the present address for a continuous period of seven days without furnishing the address of intending visit to the SHO, the Police Station concerned and the Trial Court; (IV) The petitioner will surrender his passport, if any, to the Court; and (V) The petitioner will furnish his mobile number and social media contact to the Police and the Court and will abide by the summons/notices received from the Police/Court through SMS/WhatsApp/Social Media Account. In case of any change in the mobile number or social media accounts, the same will be intimated to the Police/Court within five days from the date of the change. 15. It is expressly made clear that in case of violation of any of these conditions, the prosecution will have the right to file a petition for cancellation of the bail. 16. The petition stands accordingly disposed of. A copy of this order be sent to the Superintendent of Model Central Jail, Kanda and the learned Trial Court by FASTER. 17. The observation made herein before shall remain confined to the disposal of the instant petition and will have no bearing, whatsoever, on the merits of the case.