Sachin Kumar Saraf vs State & Ors.
2009 Latest Caselaw 3135 Del

*      THE HIGH COURT OF DELHI AT NEW DELHI

+                         Bail Appl. No. 825/2009

                                              Reserved on : 17.7.2009
                                           Date of Decision : 12.8.2009

Sachin Kumar Saraf                                   ......Petitioner
                               Through:   Mr. Anil Soni, Advocate

                                     Versus

State & Ors.                                         ...... Respondents
                               Through:   Mr. Manoj D. Taneja, Advocate,
                                          for the complainant with
                                          complainant in person.
                                          Mr. S.K. Sharma with Mr.
                                          Anoop Sharma, Advocates for
                                          the applicant.
                                          Mr. Pawan Behl, APP for the
                                          State with IO Insp. Shankar
                                          Banerjee.

CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

1.     Whether Reporters of local papers may be
       allowed to see the judgment?                        YES
2.     To be referred to the Reporter or not ?             YES
3.     Whether the judgment should be reported
       in the Digest ?                                     YES

V.K. SHALI, J.

Crl. M.A. No.7531/2009

1. This order shall dispose of an application bearing Crl. M.A. No.

7531/2009 filed by Mr. Pramod Bihani for and on behalf of M/s

Laurel Wood Private Ltd. for permission to be impleaded as an

intervener/respondent in the Bail Application No. 825/2009

filed by the petitioner.

2. Briefly stated the facts leading to filing of the present application

are that an FIR No. 14 under Sections 406/420/120B IPC was

registered on 21.1.2008 by Economic Offences Wing. The

allegations in brief as contained in the FIR were that Pramod

Bihani and Sachin Saraf of Laurel Wood Private Ltd., 503,

Vaishono Chamber, 6, Braboune Road, Kolkata had cheated, to

the tune of Rs. 3.90 crores, the complainant, one Satish Kumar

S/o Sh. Durga Prasad, Director/Proprietor of M/s D.J. shah &

Co. Private Ltd. and Swastik Healthcare Service and M/s Durga

Trading Company having its office at Delhi. It is not necessary

to go into the other finer details recorded in the FIR as to how

this offence of cheating was committed.

3. Sachin Saraf, the present petitioner who is one of the accused in

the said FIR had filed an application for grant of anticipatory

bail before the learned Additional Sessions Judge which was

dismissed on 21st May, 2008. Sachin Saraf (petitioner herein)

filed another application for grant of anticipatory bail which

came to be listed before the High Court on 21st October, 2008

and he was given an interim protection but ultimately the said

anticipatory bail application was also dismissed on 7th January,

2009.

4. Sachin Saraf filed a third anticipatory bail application on 24th

April, 2009, contending that the dispute has been settled by him

with the complainant on 24th April, 2009, and therefore, he may

be enlarged on anticipatory bail. A copy of the Compromise

Agreement between Sachin Saraf and M/s Durga Trading

Company and M/s Swastik Healthcare Service Private Ltd.

through its Director Satish Kumar s/o Sh. Durga Prasad was

placed on record. In this compromise a part of the amount of

cheating was being recovered by the complainant from Sachin

Saraf and the complainant, on it is part, was promising that be

will not oppose the bail of the petitioner. It was also recorded in

the compromise that in fact, it was Pramod Bihani who was fully

holding the rein of M/s Laurel Wood Company which is alleged

to have cheated the complainant.

5. While this application for grant of anticipatory bail is pending,

Pramod Bihani for and on behalf of M/s Laurel Wood Private

Ltd. has chosen to file the aforesaid application for being

impleaded as intervener/applicant so that the correct facts are

brought on record. The contention of the applicant/intervener is

that it was, in fact, M/s Laurel Wood Company of which Pramod

Bihani is the Director which has been the victim of cheating by

Sachin Saraf in collusion with M/s D.J. Shah and Company and

others. Therefore, it was urged that it is necessary to permit the

intervener/applicant to be impleaded as necessary party in the

bail application so that the correct facts are brought on record.

6. I have heard the learned counsel for the petitioner, learned APP

and learned counsel for the intervener/applicant.

7. The main contention of the learned counsel is that the

intervener/applicant in the aforesaid compromise dated 23rd

April, 2009 which was arrived at between Sachin Saraf and the

complainant company is a sham document by virtue of which

the complainant is giving a safe passage to the petitioner-Sachin

Saraf so that the entire money is sought to be recovered from

the intervener/applicant-Pramod Bihani and his company as he

is a man of means. It is contended that as a matter of fact the

respondent Pramod Bihani and his company M/s Laurel Wood

Company have been the victims of cheating by Sachin Saraf in

active collusion with the complainant company. It has been

stated that Sachin Saraf is the son-in-law of one of the Directors

of the complainant company and therefore, this was only a ploy

to give a safe passage to Sachin Saraf so as to implicate the

intervener/applicant Pramod Bihani and M/s Laurel Wood

Private Ltd. With regard to the locus of the co-accused Pramod

Bihani and M/s Laurel Wood Company to be impleaded as

party, strong reliance was sought to be placed on J.K.

International Vs. State, Govt. of NCT of Delhi and Ors. AIR

2001 SC 1142, to contend that the intervener/applicant has a

locus-standi to be heard, pray and oppose the bail application of

the petitioner.

8. As against this the petitioner vehemently opposed the

impleadment of the intervener/applicant as a party on the

ground contending that in a bail application the

intervener/applicant have no locus-standi to be impleaded as a

party. Reliance in this regard was placed on cases titled as

Praveen Malhotra vs. State 1990 (41) DLT 418 and Indu Bala

Vs. State, 1991 Cr.L.J. (Del) 1774.

9. I have carefully considered the respective submissions of the

learned counsel. No doubt the Supreme Court has over the

years relaxed the concept the locus-standi even in criminal

cases but that does not give a carte blanche to complainant or

any other person to come and join any or every proceeding at

will. Relaxation of this doctrine of locus-standi can be found in

the fact that when the cancellation report is filed by the police in

a State case the said cancellation report cannot be accepted

unless and until a notice is issued to the complainant who is

given the liberty to file a protest petition (See Sanjay Bansal &

Anr. Vs. Jawahar Lal Vats AIR 2008 SC 2007 and Har

Prasad & Anr. Vs. Ranveer Singh AIR 2008 SC 1265).

10. Secondly, in a State case or what is known as police case though

an appeal can be filed only by the State under Section 374 (1)

read with Sub-clause 3 Cr.P.C but in appropriate cases the High

Court has invoked that power on the instance of complainant if

it has felt, non-filing of the appeal by the State is resulting in

grave miscarriage of justice.

11. More recently in J.K. International's case where the High Court

had quashed the FIR against the accused without hearing the

complainant, the Supreme Court set aside the said judgment of

the High Court and remanded the matter back to the High Court

to decide the matter afresh after giving a opportunity of being

heard to the complainant.

12. The judgment which has been referred by the learned counsel

for the intervener/applicant in J.K. International's case (supra)

is thus, giving the right of hearing to the "complainant" and in a

State case. This case is not applicable to the present case on

account of number of reasons. This was a case where the locus

of complainant is in issue and not that of a third party or a co-

accused. Secondly, distinction has to be drawn between a case

where prayer for quashing the FIR is made, as against the

opposition to the bail by a co-accused who is in the capacity of

an accomplice and hence himself is a discredited man. Not even

a single case which has been cited by the learned counsel for the

intervener/applicant wherein the High Court or for that matter

the Supreme Court has permitted a co-accused to become an

intervener/applicant to oppose the bail application of another

co-accused. On the contrary there are judgments of our own

High Court wherein it has been held that a stranger or the third

party does not have the locus-standi to oppose the bail

application.

13. Reliance in this regard is placed on Praveen Malhotra vs. State

1990 (41) DLT 418, Indu Bala Vs. State 1991 Cr.L.J. (Del)

1774. Therefore, I am of the considered opinion that a co-

accused or even a third party cannot be permitted to oppose the

bail application of any other co-accused. If this is permitted to

be done, it will result in multiplicity of litigation and such

applications would also result in side tracking the focus of the

Court from the main issue which will be the question of grant of

bail to the accused, be that anticipatory or custodial and take

the Court into the field of apportionment of blame and trading of

charges and counter charges between the co-accused as is

sought to be done in the instant case.

14. For the reasons mentioned above I feel that the application

bearing Crl. M.A. No. 7531/2009 filed by the

intervener/applicant to be impleaded as a party is not

maintainable and the same is totally misconceived, vexatious

and is therefore dismissed.

V.K. SHALI, J.

August 12, 2009 vn