Sonal Anand vs State (Nct Of Delhi)
2006 Latest Caselaw 316 Del

JUDGMENT

S.K. Agarwal, J.

1. By this application under Section 438/482 Cr.P.C. petitioner is seeking anticipatory bail in the case FIR No.253/2005 under Sections 406/420/467/468/409/471/477A/201/120-B IPC P.S.: Kalkaji, Delhi. Notice on this application was issued on 17.2.2006; no reply has been filed.

2. Prosecution allegations are that in I.T.Sales section of Samsung India Ltd. petitioner was a Deputy General Manager, Vivek Prakash was Vice-President and R.S.Sahu was Manager (Accounts) at the relevant time. In January, 2005 on receipt of information about embezzlement at the office, a Korean team arrived India and audited the accounts. Vivek Prakash and R.S.Sahu left the service of the company before accounts could be reconciled. However, petitioner continued to work and he also left the service after one month and did not join the audit team. The case was registered on 17.3.2005; investigations was taken up; Vivek Prakash and R.S.Sahu were arrested and they are in custody. Petitioner was also interrogated his house search was conducted but he was not arrested. After investigation challan has been filed against the said two persons and the petitioner.

3. Learned counsel for the petitioner submits that cognizance has been taken and the matter is listed before learned trial court on 25.2.2006. Petitioner moved an application before learned Additional Sessions Judge for grant of anticipatory bail and the same was dismissed vide order dated 6.2.2006, holding ?Considering the nature of serious allegations against the accused he is not entitled to anticipatory bail.? Learned counsel for the petitioner further submits that offence under Section 409 IPC is punishable for life imprisonment and Magistrate may not have jurisdiction to grant bail under Section 437 Cr.P.C.; as petitioner's anticipatory bail has been declined by learned Additional Sessions Judge, he has no other remedy but to approach this Court for suitable relief. On merits, learned counsel for the petitioner argued to the contrary submitting that petitioner has participated in the investigations; he has fixed roots in the society; there is no likelihood of his absconding or tampering the evidence.

4. Learned APP for the State submits that in view of the gravity of the offence petitioner is not entitled to the relief of anticipatory bail. It was argued that as cognizance has been taken, petitioner must approach the court of Metropolitan Magistrate or the court of learned Additional Sessions Judge for a suitable relief. It was also argued that prosecution would have no objection if the suitable protection is granted to the petitioner to enable the petitioner to approach this Court again after his bail application is declined on merits, if necessary. Learned counsel for the complainant, supporting the arguments, further argued that the role of the petitioner is lesser than that of the co- accused, Vivek Prakash and Sahu, who are in custody , therefore, petitioner was not arrested. Learned counsel argued that petitioner in conspiracy with the said co-accused was instrumental in generating unauthorized funds to the tune of Rs.8.0 crores from the distributors. After audit, when the management came to know about their activities, petitioner intimidated the employees to destroy the e-mails and manipulated the accounts in their respective computers.

5. It is now settled that even when the challan is filed and cognizance is taken, application under Section 438 Cr.P.C. is maintainable. Reference in this regard may be made to the Supreme Court decision in Bharat Chaudhary and Anr. Vs. State of Bihar and Anr. 2003 IV AD (Crl.) S.C. 457, wherein it was held :

7. From the perusal of this part of Section 438 of the Cr.P.C., we find no restriction in regard to exercise of this power in a suitable case either by the Court of Sessions, High Court or this Court even when cognizance is taken or charge sheet is filed. The object of Section 438 is to prevent undue harassment of the accused persons by pre-trial arrest and detention. The fact, that a Court has either taken cognizance of the complaint or the investigating agency has filed a chargesheet, would not by itself, in our opinion, prevent the concerned courts from granting anticipatory bail in appropriate cases. The gravity of the offence is an important factor to be taken into consideration while granting such anticipatory bail so also the need for custodial interrogation, but these are only factors that must be borne in mind by the concerned courts while entertaining a petition for grant of anticipatory bail and the fact of taking cognizance or filing of charge sheet cannot by themselves be construed as a prohibition against the grant of anticipatory bail. In our opinion, the courts i.e. the Court of Sessions, High Court or this Court has the necessary power vested in them to grant anticipatory bail in non bailable offences under Section 438 of the Cr.P.C. even when cognizance is taken or charge sheet is filed provided the facts of the case require the Court to do so.

6. Investigations have been completed and challan has been filed. This case would mainly depend upon documentary evidence. The trial is bound to take time. There is nothing to show that petitioner is involved in any other case in the past or that he would flee from justice or tamper with the evidence. Prosecution case is that role of the petitioner is different from role of the concerned, who are in custody; and he was not arrested during investigation.

7. For the foregoing reasons, application is allowed. In the event of arrest, petitioner is ordered to be released on bail, on his furnishing a personal bond in the sum of Rs.5.0 lacs with two sureties in the like amount to the satisfaction of the trial court, subject to the condition that petitioner shall not leave India, without prior permission of the trial Court and shall not tamper with the evidence. Any observation made herein would not affect merits of the case during trial. Application stands disposed of. dusty.