Sharad Kumar Aggarwal vs State
2012 Latest Caselaw 4881 Del

*               IN THE HIGH COURT OF DELHI AT NEW DELHI

+                   B.A. 968/2011

                                         Decided on :     22.08.2012

Sharad Kumar Aggarwal                         ..... Petitioner
               Through:            Mr. Sunil Mittal, Adv.

                            Versus

STATE                                         ..... Respondent
                     Through:      Mr. Sunil Sharma, APP

                            WITH

                     Crl.M.C.1530/2011

Arun Mehra                                            .....Petitioner
                     Through:      Mr. A. Das, Adv.

                            Versus

State of NCT of Delhi                         .....Respondent
                 Through:          Mr. Sunil Sharma, APP

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

V.K. SHALI, J.

1. This order shall dispose of bail application No.968/2011

titled Sharad Kumar Aggarwal -vs- State and

Crl.M.C.1530/2011 titled Arun Mehra -vs- State of NCT of

Delhi.

2. Briefly stated, the facts of the case are that a civil suit was

filed by one Vishesh Jain, r/o C-48, Shastri Nagar,

Ghaziabad, Uttar Pradesh in the High Court of Delhi, which

was numbered as CS(OS) No.1136/2005. This was a suit

for recovery of ` 24,22,500/- from one Arun Mehra and

ors., including M/s. Durga Builders Pvt. Ltd.. The

defendant, Arun Mehra and his wife, Seema Mehra had

contended before the High Court that the suit, which was

filed by Vishesh Jain, was based on forged and fabricated

documents/agreements purported to have been executed

by them. The High Court directed Vishesh Jain to appear in

Court, but he failed to do so. Even the processes issued

against him could not be served for want of correct

address. The suit was dismissed by Hon‟ble Justice (Retd.)

S.N. Dhingra with a cost of ` 10,000/-, however, while

dismissing the suit, the High Court directed the Crime

Branch to investigate the whereabouts of Vishesh Jain and

unearth the conspiracy between the plaintiff, Vishesh Jain

and the defendant no.4, M/s. Durga Builders Pvt. Ltd. to file

the said suit on the basis of the forged documents.

3. In terms of the order of the High Court, an FIR

No.246/2008 was registered on 7.8.2008 under

Sections 420/467/468/471/120-B IPC by PS:Tilak Marg,

New Delhi and the matter was investigated by the Special

Operation Squad of Crime Branch. During the course of

investigation, necessary evidence was gathered and the

statements of witnesses were recorded, including that of

Arun Mehra and B.L. Wali, Advocate, who is purported to

have appeared on behalf of Vishesh Jain. It transpired

during the course of investigation that the papers, on the

basis of which the suit on behalf of Vishesh Jain was filed,

were supplied by an advocate by the name of Anuradha, a

junior of the petitioner. It also transpired that the

Vakalatanama was filed by the present petitioner for

appearing before the Court for his client, R.K. Nanda and

some other papers, including the written statement filed by

him on behalf of the said person were bearing the

signatures of R.K. Nanda, which were taken from

somewhere and affixed on the Vakalatanama, written

statement and the accompanying affidavit. The relevant

papers were collected by the Investigating Agency and they

were sent to the Forensic Science Laboratory for the

opinion of an expert, who gave an adverse report, which

prima facie, confirmed the documents being forged and

fabricated in which involvement of one R.K. Nanda, Director

of Durga Builders Pvt. Ltd. and Sharad Kumar Aggarwal,

Advocate, was prima facie established.

4. From the investigation conducted by the Police, it was also

established that Vishesh Jain is a non-existent person and

the suit had been filed on the basis of forged documents by

Sharad Kumar Aggarwal, Advocate, the present petitioner

in collusion with Directors of Durga Builders Pvt. Ltd. It is in

respect of this very suit that the present petitioner has filed

the application for the grant of anticipatory bail as his

application was rejected by Mr. H.S. Sharma, the learned

Sessions Judge on 11.5.2011, holding that the petitioner is

not entitled to the grant of anticipatory bail.

5. The petition came up for hearing for the first time on

19.7.2011, when it got adjourned to 20.7.2011. As the

chargesheet in the matter had already been filed, the

petitioner was directed to approach the learned Trial Court

for the purpose of grant of bail. The learned counsel for the

petitioner had referred to the two judgments of the Apex

Court titled Bharat Chaudhary & Anr. -vs- State of Bihar &

Anr., (2003) 8 SCC 77 and Ravindra Saxena -vs- State of

Rajasthan, (2010)1 SCC 684 to contend that mere filing of

the chargesheet against the petitioner should not be a

ground to disentitle him the grant of anticipatory bail.

Accordingly, notice was issued to the respondent and in the

meantime, the petitioner was protected from being

arrested.

6. This order of restraint against the arrest has been in

operation for almost a year. The matter was heard and the

only question which arose was as to whether the petitioner

having been protected by the interim order against his

arrest ought to be denied the anticipatory bail or he should

be granted anticipatory bail so as to appear before the Trial

Court and obtain appropriate orders from the Magisterial

Court where the chargesheet has been filed.

7. The second question which arose for consideration was

regarding an application for intervention in Bail

Appn.968/2011 bearing No.1027/2011 under Section 24(8)

read with Section 482 Cr.P.C. by Arun Mehra for being

impleaded as a party as it was alleged that he was the

person who had brought to the notice of the High Court

that the suit which was filed by Vishesh Jain against him

and his wife, Seema Mehra, was based on the forged

documents so as to manufacture evidence against them in

the Company Law Board qua M/s. Durga Builders Pvt. Ltd.

He has vehemently opposed the grant of anticipatory bail to

the present petitioner, not only on the merits of the present

case, but also on account of the fact that the present

petitioner is a habitual criminal, as he is involved in number

of other FIRs where there are allegations against him that

in active collusion with R.K. Nanda, the other co-accused,

he has similarly forged the documents and set the judicial

process into motion either criminally or by way of company

petitions.

8. I have heard Mr. Sunil Mittal, the learned counsel for the

petitioner, Mr. Sunil Sharma, the learned APP and have also

gone through the written notes handed over to the Court

on behalf of the applicant, Arun Mehra, seeking permission

to intervene in the matter and not to grant anticipatory bail

to the present petitioner.

9. On earlier occasions, submissions were made by the

learned counsel appearing for Arun Mehra that as he is the

complainant, as it was he who brought it to the notice of

the Court which got the FIR registered, therefore, he has

the locus, to ensure that the justice is met not only to the

accused, but also to the victim. He has vehemently

opposed the anticipatory bail application of the petitioner.

In this regard, the learned counsel has relied upon the

judgment of Apex Court in Sheonandan Paswan -vs- State

of Bihar & Ors., (1987) 1 SCC 288 where, in paragraph 14,

it has been observed as under:-

"It is now settled law that a criminal proceeding is not a proceeding for vindication of a private grievance but it is a proceeding initiated for the purpose of punishment to the offender in the interest of the society. It is for maintaining stability and orderliness in the society that certain acts are constituted offences and the right is given to any citizen to set the machinery of the criminal law in motion for the purpose of bringing the offender to book. It is for this reason that in A. R. Antulay v. R.S. Nayak

MANU/SC/0082/1984 : 1984CriLJ647 ,this Court pointed out that "punishment of the offender in the interests of the society being one of the objects behind penal statute enacted for larger good of society, the right to initiate proceedings cannot be whittled down, circumscribed or fettered by putting it into a strait jacket formula of locus standi".

This Court observed that locus standi of the complainant is a concept foreign to criminal jurisprudence. Now if any citizen can lodge a first information report or file a complaint and set the machinery of the criminal law in motion and his locus standi to do so cannot be questioned, we do not see why a citizen who finds that a prosecution for an offence against the society is being wrongly withdrawn, cannot oppose such withdrawal. If he can be a complainant or initiation of criminal prosecution, he should equally be entitled to oppose withdrawal of the criminal prosecution which has already been initiated at his instance. If the offence for which a prosecution is being launched is an offence against the society and not merely an individual wrong, any member of the society must have locus to initiate a prosecution as also to resist withdrawal of such prosecution, if initiated. Here in the case, the offences charged against Dr. Jagannath Misra and others are

offences of corruption, criminal breach of trust, etc., and therefore any person who is interested in cleanliness of public administration and public morality would be entitled to file a complaint, as held by this Court in A. R. Antulay v. R. S. Nayak (supra) and equally he would be entitled to oppose the withdrawal of such prosecution if it is already instituted."

The judgment of Sheonandan Paswan (supra), in my view,

does not apply to the facts of the present case for the

simple reason that the facts of the said case are

distinguishable from the facts of the case in hand. In

Sheonandan Paswan (supra), the question which was under

consideration was as to whether a criminal prosecution

which is initiated at the instance of the complainant, can be

permitted to be withdrawn by the State by resorting to

Section 321 of the Cr.P.C. without the intervention of the

complainant or the complainant has to be heard. It was in

this context that the observations of the Apex Court were

passed.

10. In the present case, there is no question of withdrawal of

prosecution case, in fact the application is only for deciding

the grant or denial of anticipatory bail to the petitioner and

since it is a State case, I feel that the petitioner does not

have any locus standi to oppose the bail application.

11. I agree with the contention of the learned counsel for the

intervenor/applicant that the concept of locus has been

gradually relaxed by judicial pronouncements as well as by

way of legislative changes in the Cr.P.C. So far as the

judicial pronouncement with regard to relaxation of the

concept of locus is concerned, it is in the context that when

a final report is filed by the Investigating Officer, seeking

closure of a Police case, a protest petition can be filed by

the complainant. This concept of protest petition was

evolved by a judicial pronouncement in Bhagwant Singh -

vs- Commissioner of Police & Anr., (1985) 2 SCC 537.

Similarly, in cases where the FIR is sought to be quashed

by filing a petition under Section 482 Cr.P.C., the

complainant has to be made as a party. This has also been

evolved by the Apex Court in J.K. International -vs- State,

Govt. of NCT of Delhi and Ors., AIR 2001 SC 1142.

12. So far as Sheonandan Paswan (supra) is concerned, it can

be seen in the same light that in case where the

prosecution is sought to be withdrawn under Section 321 of

Cr.P.C. by the State the complainant has to be heard.

13. So far as the legislative changes are concerned, no doubt,

the complainant, under the concept of „any person

aggrieved‟ can prefer a revision either to the Court of

Sessions or to the High Court under Sections 397/401 of

the Cr.P.C.. Similarly, under Section 374 Cr.P.C., there are

certain contingencies in which a complainant has also been

given the right to file an appeal against the acquittal as an

aggrieved person, which right was earlier vested only with

the State. Therefore, the net result of all these changes

with the passing of time is that the concept of locus has

been relaxed. There is, no doubt, that in cognizable

offences, the State is the main prosecuting party and the

private counsel are given a limited right of assisting the

prosecutor, but this role has been modified or relaxed in

certain given contingencies. However, at the same time, in

a matter where the accused has applied for anticipatory

bail, a third party intervention, either by the complainant or

by any other interested person, has not been allowed by

this Court. Reliance in this regard can be placed on Sachin

Kumar Saraf -vs- State & Ors., 2009(4) JCC 2629.

14. The second judgment being relied upon by the applicant is

Brij Nandan Jaiswal -vs- Munna alias Munna Jaiswal,

2009(1) SCC 678 wherein the Apex Court has held that the

complainant can always question the order of granting bail

if the said order has not been validly passed. It was also

observed by the Apex Court that if the bail is once granted

by any court, it is not as if the said bail can be cancelled

only on account of its misuse. The bail order can be tested

on merits also. No doubt, in the said judgment, the

complainant has been permitted to challenge the bail order

after the same had been granted, but in the instant case,

this Court has not granted the bail to the petitioner as yet

and giving the right of hearing to the complainant at the

stage of grant of bail would tantamount to doing something

which is prohibited by Section 301 of the Cr.P.C. The said

Section reads as under:-

301. Appearance by public prosecutors.

(1) The Public Prosecutor or Assistant Public Prosecutor in charge of a case may appear and plead without any written authority before any court in which that case is under inquiry, trial or appeal.

(2) If in any such case any private person instructs a pleader to prosecute any person in any Court, the Public Prosecutor or Assistant Public Prosecutor in charge of the case shall conduct the prosecution, and the pleader so instructed shall act therein under the directions of the Public Prosecutor or Assistant Public Prosecutor, and may, with the permission of the court, submit written arguments after the evidence is closed in the case.

A perusal of the aforesaid section would clearly show that the

public prosecutor, who is appointed by the State, is in-charge of

the case on behalf of the State and if the complainant engages a

private counsel, he, at best, can assist the public prosecutor and

shall act under the directions of the public prosecutor. Therefore,

if at all, the complainant wants to assist the Court in arriving at a

just decision, the remedy open to him is not to seek a right of

hearing to oppose the bail of the petitioner himself. It would be

in consonance with law in case he assists the Public Prosecutor

without seeking the right of hearing himself.

15. The other judgments, which have been referred to by the

learned counsel for the applicant/intervenor, are Janta

Dal -vs- H.S.Chaudhary, 1992(4) SCC 305 and A.R.

Antulay -vs- Ramadas Sriniwas Nayak, 1984(2) SCC 500. I

have gone through both these judgments. No doubt, in

both these judgments, the Apex Court has observed that

the rules of locus have been liberalized to meet the

challenges faced by a party or the concept of locus standi of

the complainant is a concept foreign to the criminal

procedure, but the fact of the matter remains that these

observations have been passed in the context of the facts

and circumstances of those two cases. The Supreme Court,

in a catena of cases by now, has observed that the law laid

down in the judgments of the Apex Court is not to be

applied like theorems. It has been laid down by the Apex

Court that while applying the principles of law laid down in

a given case, the Court must also correlate the facts of the

reported case with that of the case in hand and then apply

the law. Reliance in this regard can be placed on Haryana

Financial Corporation -vs- Jagdamba Oil Mills, 2002(3) SCC

496 and Sushil Suri -vs- CBI & Anr., AIR 2011 SC 1713. I

have already observed hereinabove that in the instant case,

the factual matrix is totally different and this Court has

already held that the third party intervention in an

anticipatory bail application, either on behalf of the

complainant or on behalf of any aggrieved person, cannot

be permitted and the reason for the same is that it will

result in sidetracking the focus of the Court from the main

issue. Accordingly, I feel that the application of the

applicant seeking impleadment as a party is totally

misconceived and the same is liable to be dismissed.

16. Now, the second question is as to whether the petitioner is

entitled to a blanket anticipatory bail order till the disposal

of the criminal trial. In this regard, Mr. Mittal has contended

that the anticipatory bail cannot be denied to the petitioner

merely because the chargesheet has been filed. He has

prayed that the petitioner has enjoyed the interim

protection for almost a year and there being no allegation

of his having misused the liberty, he may be granted

anticipatory bail till the final disposal of the case. In this

regard, he has placed reliance on Bharat Chaudhary & Anr.

(supra), Ravindra Saxena (supra) and Savitri Aggarwal &

Ors. -vs- State of Maharashtra & Anr., (2009) 3 SCC (Cri.)

683. This plea has been opposed by the learned APP, who

has contended that there cannot be blanket anticipatory

bail order. Reliance in this regard has been placed on a

number of judgments of the High Court where such a view

has been taken.

17. I have carefully considered this submission of the learned

counsel for the petitioner and have also gone through the

records.

18. The parameters, which are applicable to the grant of

anticipatory bail, are almost the same which are laid down

in respect of regular bail, namely, (i) that the Court has to

see the nature and the gravity of the allegations; (ii) the

antecedents of the accused and his roots in the society, (iii)

the possibility of his fleeing away from the processes of law

and (iv) the possibility of his tampering with the evidence.

The other aspect which becomes relevant in the case of

grant of anticipatory bail is the accusation which has been

made against the accused persons and the relevance of the

custodial interrogation and the stage of the investigation

itself, or in other words, whether the petitioner is sought to

be falsely implicated in a case.

19. The statutory provision of Section 438 Cr.P.C. has been the

subject matter of judicial pronouncement in a number of

authorities, both of the High Courts as well as the Apex

Court and the provision has been construed by the Apex

Court very liberally for protection of the personal liberty of

an individual. Reliance in this regard can be placed in

Siddharam Satlingappa Mhetre -vs- State of Maharashtra,

AIR 2011 SC 312 and Gurbaksh Singh Sibbia & Ors. -vs-

State of Punjab, (1980) 2 SCC 565. It is also not in dispute

that the Apex Court, as a matter of principle, has observed

that merely because the chargesheet has been filed in the

Court, this should not be a ground for not entertaining the

anticipatory bail application of the petitioner. But, merely

because the chargesheet has been filed against an accused,

it does not mean that he be either denied the bail or

granted the bail during the course of the entire trial. The

purpose of the observation that anticipatory bail should be

only for a limited period by the Apex Court is that the

provision of anticipatory bail is extraordinary in nature and,

therefore, it should be granted for a limited period. As the

chargesheet itself has been filed, therefore, in my view, it

will be inappropriate to grant the anticipatory bail for the

entire period during the course of trial. Moreover, the grant

of anticipatory bail to the accused for the entire period of

trial could be against the very concept of Section 438 of the

Cr.P.C. This is on account of the fact that the provision of

anticipatory bail is applicable at the stage of pre-arrest of

an accused or the grant of bail to an accused in anticipation

of his arrest. In the instant case, the chargesheet having

already been filed and the accused already having been

protected against the arrest for almost a year, I feel that

there is hardly any occasion for the Investigating Officer to

arrest the petitioner now or even if there is a threat of

arrest, this can be allayed by relegating him to go to the

Court concerned and apply for regular bail and in the

meantime, protect him till the disposal of the trial. I fully

agree with the contention of Mr. Sunil Mittal that merely

because the chargesheet has been filed, that does not

mean that the Court becomes powerless to grant the

anticipatory bail. I am accepting this view on account of the

fact that there are a number of judgments of the Apex

Court which are detailed hereinabove in this regard,

supporting the said proposition of law, but the

entertainment of anticipatory bail application while the

chargesheet has already been filed and the grant of

anticipatory bail during the entire course of trial when a

chargesheet has been filed are two different things.

20. I agree with the first proposition, but I do not accept that

the Court will be justified and it will be legal to pass an

order of anticipatory bail protecting the petitioner till the

disposal of the trial because of the reason that it is

ultimately the Trial Court which is seized of the matter

where the entire prosecution material is produced before

the Judge concerned and it is essential for him to decide as

to whether this is a fit case where the regular bail ought to

be granted to the petitioner under Section 439 Cr.P.C. or

whether this is a case which may warrant denial of the said

bail to him, if the facts so justify.

21. Admittedly, in the instant case, one thing is clear that the

allegations against the petitioner are very serious in nature.

There are allegations not only of forgery and using the

forged documents as genuine, but it has also been brought

on record by the complainant that there are four or five

cases against the petitioner where there are somewhat

similar accusations of forging a document on behalf of

some persons and then using those forged documents as

genuine in collusion with some other accused person. If the

allegations against the present petitioner are proved to be

correct, then, it not only results in commission of the

alleged offence, but at the same time, it is highly

reprehensible that a person, who is techno savvy and

belongs to one of the noblest professions has been using

the latest technology for the purpose of committing such

offences. I, therefore, feel that all these aspects have to be

considered by the Trial Court where the trial is going on

and the entire evidence has been produced by the

Prosecution. There is another aspect of the matter which

pertains to the powers of the Police to carry out further

investigation which may get impaired in case this Court

passes a blanket order granting anticipatory bail till the

disposal of the case. Therefore, all these aspects of the

matter do not persuade me sufficient enough to grant the

petitioner pre-arrest bail during the entire trial of the case.

22. For the reasons mentioned above, I am of the considered

opinion that the right of the petitioner to be released on

anticipatory bail does not become infructuous on account of

filing of the chargesheet and he, having continued to have

been under protection of interim bail for the last more than

a year, there is no justification for this Court to deny the

anticipatory bail to him so as to enable him to go the Court

below for the grant of regular bail on the first appearance

itself.

23. Accordingly, the petitioner is permitted to be released in

the event of his arrest on his furnishing a personal bond in

the sum of ` 50,000/- with one surety of the like amount to

the satisfaction of the Trial Court/IO/SHO for a period of

one month, within which he shall approach the Trial Court

and apply for regular bail. It is made clear that expression

of any opinion hereinabove may not be treated as an

expression on the merits of the case.

24. The petition is allowed in terms of the above directions.

Crl.M.C.1530/2011

25. So far as this case is concerned, the prayer of the petitioner

is to direct the Registrar-General of this Court to monitor

the progress of the case in FIR No.246/2008 under Sections

420/467/471/474/193/196/205/120B IPC pending before

the learned Metropolitan Magistrate and call for the

periodical reports. It is this very FIR in which the petitioner

has been granted anticipatory bail by this Court. I have

considered this prayer of the petitioner. I feel that the

prayer of the petitioner is totally unsustainable in the eyes

of law on account of the fact that the chargesheet, having

been filed against the petitioner, it is essential for the

learned Magistrate to supervise the investigation or the

trial, as the case may be.

26. Accordingly, this petition is dismissed.

V.K. SHALI, J.

August 22, 2012/tp