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.
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Judgement Analysis Written by – K. Immey Grace
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