Delhi High Court
M/S Pee Empro Exports P. Ltd. vs State & Anr. on 25 November, 2022
NEUTRAL CITATION NO: 2022/DHC/005117
*IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on : 16.08.2022
Date of decision: 25.11.2022
+ Crl.M.C. No. 298/2022 Crl.M.A.1192/2022
M/S PEE EMPRO EXPORTS P. LTD. ..... Petitioner
Through: Mr.Maninder Singh,
Sr.Advocate With Ms. Smriti
Asmita, Mr.Harsh Vashisht and
Ms.Anshika Batra, Advocates
Versus
STATE & ORS. ..... Respondents
Through: Mr.Shoaib Haider, APP for
State with Inspector Akhilesh
Mr.Rakesh Kumar, Mr.Ravi
Ranjan and Mr.Harsh Ojha,
Advocates
+ Crl.M.C. No. 2842/2022 Crl.M.A.11874/2022
M/S PEE EMPRO EXPORTS P. LTD. ..... Petitioner
Through: Mr.Maninder Singh,
Sr.Advocate With Ms. Smriti
Asmita, Mr.Harsh Vashisht and
Ms.Anshika Batra, Advocates
Versus
STATE OF NCT OF DELHI & ANR. ..... Respondents
Through: Mr.Shoaib Haider, APP for
State with Inspector Akhilesh
Mr.Rakesh Kumar, Mr.Ravi
Ranjan and Mr.Harsh Ojha,
Advocates
+ Crl.M.C. No. 2848/2022 Crl.M.A.11746/2022
M/S PEE EMPRO EXPORTS P. LTD. ..... Petitioner
Signature
Not Verified
Digitally Signed
By:SUMIT GHAI
Signing
Date:25.11.2022
11:42:31
This file is Crl.M.C. Nos. 298/2022, 2842/2022, 2848/2022 Page 1 of 31
digitally signed by
PS to HMJ ANU
MALHOTRA.
3241/2021 and 3348/2022
NEUTRAL CITATION NO: 2022/DHC/005117
Through: Mr.Maninder Singh,
Sr.Advocate With Ms. Smriti
Asmita, Mr.Harsh Vashisht and
Ms.Anshika Batra, Advocates
Versus
STATE OF NCT OF DELHI & ANR. ..... Respondents
Through: Mr.Shoaib Haider, APP for
State with Inspector Akhilesh
Mr.Rakesh Kumar, Mr.Ravi
Ranjan and Mr.Harsh Ojha,
Advocates
+ Crl.M.C. No. 3241/2021and Crl.M.A.19938/2021
M/S PEE EMPRO EXPORTS P. LTD. ..... Petitioner
Through: Mr.Maninder Singh,
Sr.Advocate With Ms. Smriti
Asmita, Mr.Harsh Vashisht and
Ms.Anshika Batra, Advocates
Versus
STATE OF NCT OF DELHI & ANR. ..... Respondents
Through: Mr.Shoaib Haider, APP for
State with Inspector Akhilesh
Mr.Rakesh Kumar, Mr.Ravi
Ranjan and Mr.Harsh Ojha,
Advocates
+ Crl.M.C. No. 3348/2022 Crl.M.A.14072-14073/2022
M/S PEE EMPRO EXPORTS P. LTD. ..... Petitioner
Through: Mr.Maninder Singh,
Sr.Advocate With Ms. Smriti
Asmita, Mr.Harsh Vashisht and
Ms.Anshika Batra, Advocates
Versus
STATE OF NCT OF DELHI & ANR. ..... Respondents
Through: Mr.Shoaib Haider, APP for
Signature
Not Verified
Digitally Signed
By:SUMIT GHAI
Signing
Date:25.11.2022
11:42:31
This file is Crl.M.C. Nos. 298/2022, 2842/2022, 2848/2022 Page 2 of 31
digitally signed by
PS to HMJ ANU
MALHOTRA.
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NEUTRAL CITATION NO: 2022/DHC/005117
State with Inspector Akhilesh
Mr.Rakesh Kumar, Mr.Ravi
Ranjan and Mr.Harsh Ojha,
Advocates
CORAM:
HON'BLE MS. JUSTICE ANU MALHOTRA
JUDGMENT
ANU MALHOTRA, J.
1. The petitioner, vide the Crl.M.C. No.298/2022 assails the
impugned order dated 8.7.2021 of the Court of the Additional
Sessions Judge, in FIR No. 218/2020 Police Station EOW
registered under Sections 406/420/120B of the Indian Penal
Code, 1860 vide which the order on anticipatory bail
application filed by the respondent No.2 S.Venkatakrishanan
was disposed of with directions to the Investigating Agency that
in case if during the course of investigation the arrest of the
applicant was found imminent, the applicant be served with
advance seven working days notice so that he can avail the legal
remedies available to him.
2. Vide Crl.M.C. No. 2842/2022 , the very same petitioner
M/s Pee Empro Exports Pvt. Ltd. assails the impugned order
dated 17.5.2022 of the learned Additional Sessions Judge in
relation to FIR No. 218/2020 Police Station EOW registered
under Sections 406/420/120B of the Indian Penal Code, 1860
vide which order qua the anticipatory bail applications filed in
Bail matters bearing Nos. 388/2022 of the accused person P.K.
Ramesh there were observations in relation to the previous
Signature
Not Verified
Digitally Signed
By:SUMIT GHAI
Signing
Date:25.11.2022
11:42:31
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PS to HMJ ANU
MALHOTRA.
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anticipatory bail application having been withdrawn on
8.7.2021 (apparently the reference to S.Venkatakrishanan the
respondent No.2 in Crl.M.C. No.298/2022) with observations
that the investigation was at a nascent stage and seven (7)
working days notice was thus directed to be given before any
arrest was made. Further vide the impugned order dated
17.5.2022 it was observed by the learned Additional Sessions
Judge as the Investigating Officer had not even seen the
investigation carried out by the Chennai police it was deemed
fit that the direction for issuance of five (5) working days prior
notice be reiterated and it was directed that the accused would
whole heartedly cooperate with the investigation and join the
same in order to assist the IO in deciphering the documents
which had been handed over in a heap and explain the
transactions to the Investigating Officer properly in response to
his queries, subject to the constitutional right available to the
accused and that the Investigating Officer would on reaching a
conclusion regarding siphoning of money, or misappropriation
or in case of non cooperation by the accused take a decision
regarding requirement of arrest of the accused and act
accordingly. It was further observed by the learned Additional
Sessions Judge-04, New Delhi that needless to say that the
provision for anticipatory bail has to be applied judiciously, as
granting such as relief at initial stages of investigation, where
the material is in possession of an accused was not adequately
available with the Investigating Officer may prejudice the case
Signature
Not Verified
Digitally Signed
By:SUMIT GHAI
Signing
Date:25.11.2022
11:42:31
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PS to HMJ ANU
MALHOTRA.
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of the prosecution and victims and on the other hand denying
such relief also at that stage may interfere with individual
liberty and it was thus observed that the accused as well as the
Investigating Agency must both act rationally so that any
unfortunate haste in the matter is avoided.
3. Vide Crl.M.C. No. 2848/2022, the very same order
assailed in Crl M.C. No. 2842/2022, i.e., the order dated
17.5.2022 of the learned Additional Sessions Judge, was
assailed in as much as it is a common order in relation to the
bail applications of Mr. P.K.Ramesh (Bail Appln. No.
388/2022), Maria Ramesh (Bail Appln. No. 389/2022) and
S.Venkatakrishanan (Bail Appln. No. 259/2022) accused
arrayed in FIR No. 218/2020 Police Station EOW registered
under Sections 406/420/120B of the Indian Penal Code, 1860,
i.e. the respondent No.2 S.Venkatakrishanan in CrlM.C. No.
298/2022 and Crl.M.C. No. 3348/2022, P.K.Ramesh arrayed as
respondent No.2 in Crl.M.C. No. 2842/2022 and as respondent
No.3 in Crl.M.C. No. 3241/2021 and Ms.Maria Ramesh arrayed
as respondent No.2 Crl.M.C. No. 2848/2022 and Crl.M.C. No.
3421/2021 filed by the very same petitioner. The order dated
14.6.2021 of the Court of the learned Additional Sessions Judge
in the very same FIR No. 218/2020 Police Station EOW
registered under Sections 406/420/120B of the Indian Penal
Code, 1860 vide which the accused persons P.K.Ramesh and
Ms. Maria Ramesh on applications under Section 438 of the
Cr.P.C., 1973, filed seeking the grant of anticipatory bail, the
Signature
Not Verified
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By:SUMIT GHAI
Signing
Date:25.11.2022
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MALHOTRA.
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applications were disposed of as withdrawn in view of it having
been argued by the prosecution that the matter was at the
nascent stage and required a detailed investigation with the
defence counsel having submitted that in order to be fair to the
Investigating Agency they were inclined to withdraw the bail
applications subject to the conditions that in case if during the
course of investigation, the Investigating Agency found the
arrest of the applicants to be imminent and unavoidable, then,
advance seven working days notice would be served upon
them whereby they could exercise the legal remedies available
to them to which the learned Additional Public Prosecutor for
the State conceded and the said applications were disposed of
as withdrawn with directions to the investigating agency that in
case during the course of investigation the arrest of the
applicants was found imminent, the applicants be served with
the advance seven working days notice so that they could avail
the legal remedies available.
4. Vide Crl.M.C. No. 3348/2022, the very same petitioner
assails the impugned order dated 17.5.2022 of the learned
Additional Sessions Judge-04, New Delhi in relation to the
respondent No.2 arrayed to this petition being
S.Venkatakrishnan whereby on an application filed seeking the
anticipatory bail by the said accused directions for issuance of 5
working days prior notice were reiterated with it having been
directed to the effect:
Signature
Not Verified
Digitally Signed
By:SUMIT GHAI
Signing
Date:25.11.2022
11:42:31
digitally signed by
PS to HMJ ANU
MALHOTRA.
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"............
that the direction for issuing 5 working days
prior notice is directed that the accused shall
whole heartedly cooperate with the investigation
and join the same in order to assist the IO in
deciphering the documents which have been
handed over in a heap and explain the
transactions to the IO properly in response to his
queries, subject to the constitutional right
available to the accused. The IO shall, on
reaching a conclusion regarding siphoning of
money, or misappropriation or in case of non
cooperation by accused, take a decision
regarding requirement of arrest of the accused
and act accordingly. Needless to say that the
provision for anticipatory bail has to be applied
judiciously, as granting such as relief at initial
stages of investigation, where the material is in
possession of an accused and not adequately
available with the IO, may prejudice the case of
the prosecution and victims and on the other
hand, denying such relief also at such a stage
may interfere with individual liberty.",
the said order is the same as assailed in Crl.M.C. No. 2848/2022
and Crl.M.C. No. 2842/2022.
5. The grievance of the petitioner in each of these cases is
common, i.e., the grant of a pre arrest notice directed to be
given by the Investigating Agency to the accused in the event of
arrest submitting to the effect that the same is in violation of the
orders of the Hon'ble Supreme Court in
"Union of India V. Padam Narain
Aggarwal Etc.; (2008) 13 SCC 305
Signature
Not Verified
Digitally Signed
By:SUMIT GHAI
Signing
Date:25.11.2022
11:42:31
digitally signed by
PS to HMJ ANU
MALHOTRA.
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NEUTRAL CITATION NO: 2022/DHC/005117
State of Telangana V. Habib Abdulla
Jeelani; (2017) 2 SCC 779
Enforcement Directorate V. Tilak Raj
Arora; 2019 SCC OnLine Del 11711
State of Maharashtra V. Mohd. Rashid;
(2005) 7 SCC 56
D.K.Ganesh Basu V. P.T. Manokaran;
2007(2) RCR (Criminal) 161: 2007 Cri LJ
Bharat Inder Singh Chahal V. State of
Punjab And Ors. 2007 SCC OnLine P & H
691",
and that there could have been no directions given by the
learned ASJ and furthermore, nor qua the investigation to be
conducted which is the prerogative of the Investigating Agency
in as much as the learned Additional Sessions Judge vide the
order dated 17.5.2022 had observed to the effect:
".....
The Investigating Officer pointed out
that he had submitted several
questionnaires but he did not get any
satisfactory explanation for the same. He
pointed out through his replies that
accused/applicant gave vague answers
to his queries and sought few days time
to supply supporting documents, which
documents were never supplied to him by
the accused. He has claimed want of
cooperation and inadequate explanation
of various financial transactions being
investigated by him.
Ld. Senior Counsel for the
applicants/accused persons pointed out
Signature
Not Verified
Digitally Signed
By:SUMIT GHAI
Signing
Date:25.11.2022
11:42:31
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PS to HMJ ANU
MALHOTRA.
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that the father of some of the
complainants, before this court, had filed
a complaint, initially, which was
transferred by EOW, New Delhi to
Chennai, Tamil Nadu. The Chennai
police has since filed a closure report
and the present complaint by his
children and other family members is an
extension of the same complaint and has
to be viewed as a complaint by investors
and not by home buyers. The father of
some of the complainants had been an
investor in the project and even his
complaint was motivated by the dispute
between the investors. He has further
submitted that the jurisdiction of this
court was created on the basis of a
programme at ITC Maurya Sheraton
even though, the entire transaction took
place at Tamil Nadu. He has stated that
even Serious Fraud Investigation Unit
had been approached by the father of the
complainants and a clean chit was given
to the accused persons. He submits that
the amount loaned to CAPL, Australia
has firstly, been returned and secondly,
the same was not extended from the
amount received by the companies
towards completion of project. Counsel
has alleged that Delhi police was acting
under the influence of the complainants.
Further, qua accused S. Venkata
Krishnan, it has been submitted that he
was only an Auditor of the company and
he never acted as CFO or in any other
capacity on behalf of the company.
At this stage, I was constrained to
ask the Investigating Officer whether he
Signature
Not Verified
Digitally Signed
By:SUMIT GHAI
Signing
Date:25.11.2022
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PS to HMJ ANU
MALHOTRA.
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had approached the Chennai police and
tried to go through the closure report
and material collected by the Chennai
police to reach the said conclusion.
I was also constrained to ask the
counsel for accused whether the accused
persons have supplied the requisite
documents in support of the short reply
and charts that were admitted to have
been supplied to the IO and whether all
material in terms of the questionnaire
put by the IO and pointed out in his
replies stands supplied to the IO.
At this stage, some controversy was
being raised, inasmuch as, IO and
counsel for accused were not in
agreement regarding the compliance
made by the accused. To cut short any
controversy, a heap of documents was
supplied to the IO in court and counsel
for accused persons has undertaken to
ensure supply of all documents that may
not be part of the said heap but required
by the IO, as per his questionnaires
pointed out by IO in his replies to these
applications within 15 days.
At this juncture, it was fairly
conceded by the IO that he has not
interacted with Chennai police viz a viz
the investigation carried out by them,
although, he claimed that the scope of
both complaints was different. I fail to
understand that if investigation was
Signature
Not Verified
Digitally Signed
By:SUMIT GHAI
Signing
Date:25.11.2022
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PS to HMJ ANU
MALHOTRA.
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carried out qua the said project by
Chennai police, why the Delhi police is
not interested in even looking at the
same, even though it is possible that the
claims of any siphoning of money would
have been investigated. In case, the
transactions pertaining to loans have
been explained, with documents, in the
closure report, the same may be used in
investigation and if they have not been
explained then the claim of the
complainant may have additional
support.
At this stage, counsel for the
complainants also alleged that the
accused have been favoured in Chennai
in the other FIR.
With both sides not trusting the
police in the other city, they may
consider approaching the Hon‟ble
Supreme Court for transfer of
investigation to a neutral agency, but I
cannot look at this aspect at this stage.
However, considering the submissions
made by the IO that the documents
forming part of closure report have not
been seen by him and that additional
documents have been supplied today, the
investigating agency still has some task
to perform and to conclude whether or
not there was any diversion of fund or
siphoning of money by the accused
persons through the network of
companies.
I have perused the record and
found that earlier also an anticipatory
Signature
Not Verified
Digitally Signed
By:SUMIT GHAI
Signing
Date:25.11.2022
11:42:31
digitally signed by
PS to HMJ ANU
MALHOTRA.
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bail application was moved, which was
withdrawn on 08.07.2021 on the
submission that the investigation was at
a nascent stage and 7 working days
notice was directed to be given before
any arrest was made.
It seems that a notice was issued for
arresting the accused persons on the
premiss that they were not cooperating
with the investigation and not supplying
the necessary documents. However,
since the IO had not even seen the
investigation carried out by Chennai
police, in my view, his decision was a bit
in haste. Therefore, considering the
aforesaid submissions, it is deemed fit
that the direction for issuing 5 working
days prior notice is reiterated and it is
directed that the accused shall whole
heartedly cooperate with the
investigation and join the same in order
to assist the IO in deciphering the
documents which have been handed over
in a heap and explain the transactions to
the IO properly in response to his
queries, subject to the constitutional
right available to the accused. The IO
shall, on reaching a conclusion
regarding siphoning of money, or
misappropriation or in case of non
cooperation by accused, take a decision
regarding requirement of arrest of the
accused and act accordingly. Needless to
say that the provision for anticipatory
bail has to be applied judiciously, as
granting such as relief at initial stages of
investigation, where the material is in
possession of an accused and not
Signature
Not Verified
Digitally Signed
By:SUMIT GHAI
Signing
Date:25.11.2022
11:42:31
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PS to HMJ ANU
MALHOTRA.
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adequately available with the IO, may
prejudice the case of the prosecution and
victims and on the other hand, denying
such relief also at such a stage may
interfere with individual liberty.
Therefore, the accused as well as
the investigating agencies must both act
rationally so that any unfortunate haste
in this regard can be avoided.
With these observations, the present
bail applications are
disposed off."
6. On behalf of the respondent/accused it was inter alia
submitted that there was no blanket order that had been passed
vide the impugned order and no blanket direction had been
granted.
7. The learned APP for the State did not refute the status of
law as laid down by the Hon'ble Supreme Court on the verdicts
relied upon on behalf of the petitioner.
8. The learned counsel for the respondent/accused placed
reliance on the order dated 9.12.2021 of this Court in Bail
Application No. 3718/2021 titled Raghav Bansal Alias Sahil V.
The State (Govt. of NCT of Delhi).
9. FIR No. 218/2020 Police Station EOW registered under
Sections 406/420/120B of the Indian Penal Code, 1860, was
registered at New Delhi on the complaint of Sh. Hans Sachdev
against Maria Ramesh, P.K.Ramesh, Ramesh Praveen Kumar,
S. Ravindranathan, R. Mahalakshmi, Vijayalakshmi Gopi,
S.Venkatakrishnan wherein there are allegations to the effect
Signature
Not Verified
Digitally Signed
By:SUMIT GHAI
Signing
Date:25.11.2022
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PS to HMJ ANU
MALHOTRA.
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that these accused persons had jointly and independently in
connivance and conspiracy with one another and various other
persons failed to hand over the plots in the Ushera project in
connivance and conspiracy with senior officials of LIC Housing
Finance Ltd. indulged in profile funding and double sale of the
flats and received money in cash in regard to sale of flats in the
Ushera project to utilize for themselves and that there had been
a misappropriation of the money/properties of the complainant;
that there had been falsification of accounts and
merchants/traders have breached the trust of the complainants;
also indulged in money laundering, i.e., siphoning of money
from the Call Express Group companies i.e., (a) Call Express
Engineering Private Limited, (b) Call Express Construction
(Indian) Pvt. Ltd. , (c) CALLEX Creations Private Limited with
their registered offices at No.20, Poes Road, First Street,
Teynampet, Chennai, Tamil Nadu-600018 to its
counterparts/sister concern Callex Australia Pty Ltd. Australia
as well as with offences committed under the Prevention of
Corruption Act.
10. It was alleged through the said FIR that P.K.Ramesh,
S.Ravindranathan and Maria Ramesh approached Hans Sachdev
and Prit Mohinder Singh Uppal of M/s Pee Empro Exports Pvt.
Ltd. for purchase of their flats in the USHERA project and that
P.K.Ramesh accompanied with the marketing team organized
an event at the Hotel Maurya Sheraton, Delhi where Hans
Sachdev and Prit Mohinder Singh Uppal of M/s Pee Empro
Signature
Not Verified
Digitally Signed
By:SUMIT GHAI
Signing
Date:25.11.2022
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PS to HMJ ANU
MALHOTRA.
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Exports Pvt. Ltd. were invited at the Hotel Maurya Sheraton on
the promotion of the USHERA project were informed that the
Call Express Construction (Indian) Pvt. Ltd was coming up with
the USHERA project on the prime property at Village and
Taluka sholinganallur, Distt. Kancheepuram, Tamil Nadu, and it
was informed that the price of the land value had increased 100
folds in the past 10 years and that the price of their flats would
double by the time they get possession of their flats and that
during the promotion and during various conversations and
thereafter P.K.Ramesh and S.Ravindranathan introduced Maria
Ramesh, Director of Call Express Construction (Indian) Pvt.
Ltd., R.Mahalakshmi, Vice President,- Marketing, Call Express
Construction (Indian) Pvt. Ltd, and Vijayalakshmi Gopi, Vice
President, Call Express Construction (Indian) Pvt. Ltd, and they
jointly induced the complainants to believe that the project was
well funded and that the flats would be ready before time even
if all the flats were not sold and further submissions were made
in the FIR qua inducements made and thus the complainants
Hans Sachdev and Prit Mohinder Singh Uppal of M/s Pee
Empro Exports Pvt. Ltd. booked flats No. C-7 and D-14
respectively in the USHERA project and Hans Sachdev entered
into a deed of Agreement of Sale on 9.6.2015 for a
consideration of Rs.51,89,940/- and Prit Mohinder Singh Uppal
on behalf of M/s Pee Empro Exports Pvt. Ltd. entered into a
deed of Agreement for Sale on 5.6.2015 for a consideration of
Rs.50,04,668/- and thereafter also Prit Mohinder Singh Uppal
Signature
Not Verified
Digitally Signed
By:SUMIT GHAI
Signing
Date:25.11.2022
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MALHOTRA.
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on behalf of M/s Pee Empro Exports Pvt. Ltd. also entered into
a Construction Agreement for Sale on 5.6.2015 for a
consideration of Rs.2,72,82,793/- and Hans Sachdev entered
into the Construction Agreement for Sale on 16.11.2015 for a
consideration of Rs.3,80,30,695/- .
11. It was alleged inter alia through the FIR that the
construction had stopped from 2017 and that the accused person
had siphoned almost 100 Crores of rupees to their foreign bank
accounts and diverted the money for their own use contrary to
the contract with the complainant.
12. Vide order dated 8.2.2021 in W.P.No. 2688/2021 and
W.M.P. No. 3019/2021 of the Hon'ble High Court of Madras
whilst issuance of notice of the petition of which the State was
in receipt of notice and was represented,- a stay of further
investigation in Crime No. 218/2020 Police Station EOW dated
16.12.2020 i.e., the FIR in question was granted pending
disposal of the said writ petition.
13. Vide order dated 9.4.2021 of the Hon'ble Supreme Court
in SLP (Crl.) 2806/2021, with submissions having been made
therein that the FIR had been registered in Delhi and not at
Madras with notice of the said petition having been issued the
operation of the impugned order was directed to remain stayed.
Vide order dated 4.10.2021 in SLP(Crl.) No. 2806/2021 the
Hon'ble Supreme Court set aside the ad interim ex parte stay
order passed by the High Court of Madras dated 8.2.2021 and
the submissions made on behalf of the petitioners of the petition
Signature
Not Verified
Digitally Signed
By:SUMIT GHAI
Signing
Date:25.11.2022
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PS to HMJ ANU
MALHOTRA.
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i.e., Hans Sachdev and Prit Mohinder Singh Uppal, the
complainants of the FIR 218/2020 Police Station EOW to the
effect that the High Court of Madras, Chennai had no territorial
jurisdiction to entertain the petition for quashing of the FIR
218/2020 Police Station EOW qua offences under Sections
420/406/120B of the Indian Penal Code, 1860 and rival
contentions on behalf of the respondent Nos. 3 and 4 that the
High Court of Madras had territorial jurisdiction in terms of the
Article 226(2) of the Constitution were observed in the order
dated 4.10.2021, with it having been observed further by the
Hon'ble Supreme Court to the effect that:
" .... Since the matter is pending before
the High Court of Madras at Chennai, we
refrain to express opinion on this aspect
to the matter and leave it for the parties to
raise objections including territorial
jurisdiction before the High Court and if
such objection is being raised, it is
expected from the High Court to decide
the preliminary objection of territorial
jurisdiction in the first place.
With the observations afore-stated,
the Special Leave Petition is, accordingly,
dismissed."
14. The written submissions of the petitioner submitted in
Crl.M.C. No. 2848/2022 indicate to the effect that one FIR No.
253/2019 was filed at CCB Chennai by one of the Investors of
the project in which FIR, the closure report was filed and that
closure report is under challenge and the protest petition has
been filed before the CMM, Egmare Court, Chennai. The
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petitioners seek to submit that vide order dated 17.5.2022 which
is impugned in three petitions i.e., Crl.M.C. No. 2842/2022,
2848/22 and 3348/2022, the learned Additional Sessions Judge
had observed to the effect:
" At this stage, I was constrained to ask
the Investigating Officer whether he had
approached the Chennai police and tried
to go through the closure report and
material collected by the Chennai police
to reach the said conclusion.
I was also constrained to ask the
counsel for accused whether the accused
persons have supplied the requisite
documents in support of the short reply
and charts that were admitted to have
been supplied to the IO and whether all
material in terms of the questionnaire
put by the IO and pointed out in his
replies stands supplied to the IO.
At this stage, some controversy was
being raised, inasmuch as, IO and
counsel for accused were not in
agreement regarding the compliance
made by the accused. To cut short any
controversy, a heap of documents was
supplied to the IO in court and counsel
for accused persons has undertaken to
ensure supply of all documents that may
not be part of the said heap but required
by the IO, as per his questionnaires
pointed out by IO in his replies to these
applications within 15 days.
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At this juncture, it was fairly
conceded by the IO that he has not
interacted with Chennai police vizaviz
the investigation carried out by them,
although, he claimed that the scope of
both complaints was different. I fail to
understand that if investigation was
carried out qua the said project by
Chennai police, why the Delhi police is
not interested in even looking at the
same, even though it is possible that the
claims of any siphoning of money would
have been investigated. In case, the
transactions pertaining to loans have
been explained, with documents, in the
closure report, the same may be used in
investigation and if they have not been
explained then the claim of the
complainant may have additional
support.
At this stage, counsel for the
complainants also alleged that the
accused have been favoured in Chennai
in the other FIR.
With both sides not trusting the
police in the other city, they may
consider approaching the Hon‟ble
Supreme Court for transfer of
investigation to a neutral agency, but I
cannot look at this aspect at this stage.
However, considering the submissions
made by the IO that the documents
forming part of closure report have not
been seen by him and that additional
documents have been supplied today, the
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investigating agency still has some task
to perform and to conclude whether or
not there was any diversion of fund or
siphoning of money by the accused
persons through the network of
companies.",
and it has thus been submitted by the petitioners that the said
observation and directions of the learned Additional Sessions
Judge were beyond law and the learned Additional Sessions
Judge could not have directed the Investigating Officer to
investigate the matter in a particular manner.
15. On behalf of the respondents it was inter alia sought to be
submitted that the petitions have become infructuous as the
respondents/accused have already been granted bail vide order
dated 6.8.2022 of the learned Additional Sessions Judge, Patiala
House Courts, New Delhi and the respondents submit that the
only issue pending is the aspect of a pre-arrest notice by the
Investigating Officer being illegal and contrary to law as laid
down by the Hon'ble Supreme Court. The respondent/accused
submits that the said orders are not blanket orders and that a
blanket order in SHRI GURBAKSH SINGH SIBBIA AND
OTHERS V. STATE OF PUNJAB: (1980) 2 Supreme Court
Cases 565 wherein it is observed to the effect:
"That is why, normally, a direction should
not issue under Section 438(1) to the
effect that the applicant shall be released
on bail "whenever arrested for which ever
offence whatsoever". That is what is
meant by a „blanket order‟ of anticipatory
bail, an order which serves as a blanket to
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cover or protect any and every kind of
allegedly unlawful activity, in fact any
eventuality, likely or unlikely regarding
which, no concrete information can
possibly be had."
16. It has thus been submitted by the respondent that the
orders impugned are not the blanket orders as they pertain to a
specific FIR in relation to specific offences and that the order
dated 14.6.2021 was a consent order on the consent given by the
learned APP for the State and it was only because of the consent
that the applicants had withdrawn their anticipatory bail
applications and as regards the order dated 17.5.2022 the
learned Additional Sessions Judge had observed to the effect
that the Investigating Officer was in a bit haste in issuing the
arrest notice and the accused had participated in the
investigation and have attended the inquiry several times and
have furnished thousand of documents thereby cooperating with
the investigation and thus the learned Additional Sessions Judge
deemed it fit to direct the issuance of a five (5) days pre-arrest
notice and directed the Respondents/Accused to cooperate with
the investigation with it thus having submitted by the
respondent that the said order is also not a blanket order as
alleged by the Petitioner.
17. Inter alia reliance is placed on behalf of the respondent on
the observations of the Supreme Court in SHRI GURBAKSH
SINGH SIBBIA AND OTHERS V. STATE OF PUNJAB
(supra) vide paragraph No. 13 which reads to the effect:
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"......The High Court and the Court of
Session to whom the application for
anticipatory bail is made ought to be left
free in the exercise of their judicial
discretion to grant bail if they consider it
fit so to do on the particular facts and
circumstances of the case and on such
conditions as the case may warrant.
Similarly, they must be left free to refuse
bail if the circumstances of the case so
warrant, on Considerations similar to
those mentioned in Section 437or which
are generally considered to be relevant
under Section 439 of the Code..."
18. It has thus been submitted on behalf of the respondents
that the Hon'ble Supreme Court has time and again held that
where matters of discretion are concerned, a straightjacket
formula cannot be applied by generalization and the
distinguishable facts and circumstances of each case have to
borne in mind while adjudicating upon them.
19. Inter alia, it has been submitted on behalf of the
respondent that the reliance placed by the petitioner on the
verdicts relied upon are misplaced submitting to the effect that:
"7. It is submitted that the reliance placed
by the Complainant on the judgments filed
by him before this Hon‟ble Court are
misplaced inasmuch as the judgments
namely- Union of India vs Padam Narain
Aggarwal Etc.(2008) 13 SCC 305and State
of Maharashtra vs Mod. Rashid (2005) 7
SCC 56 are clearly distinguishable from
the facts of this case as the same
werepassed in context of "blanket orders"
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of the High Court which sought to grant
protection to the respondents in respect of
"any non-bailable offence"which is
definitely not the case in the impugned
orders.
8. With regard to State of Telangana vs
Habib Abdullah Jeelani and Others
(2017) 2 SCC 799, relied upon by the
complainant, it is submitted that the said
case is totally distinguishable both on facts
as well as law since the matter in issue was
whether the High Court can issue
directions not to arrest in a petition u/s 482
for quashing of FIR and not with regard to
the powers vested in the High Court and
Court of Sessions u/s 438 of the CrPC.
9. Similarly D.K.Ganesh Babu vs P.T.
Manokaran 2007 (2) RCR (Criminal) 161:
2007 Cri LJ 1827, relied upon by the
complainant is also clearly distinguishable
as it deals with whether direction
restraining arrest may be passed in an
application U/s 438 of the code."
20. Inter alia the respondent has placed reliance on the
verdicts of the Hon'ble Supreme Court in:
Shri Gurbaksh Singh Sibbia And Others V. State of
Punjab; 1980 2 SCC 565;
Sushila Aggarwal and Others v. State (NCT OF
DELHI) and Another ; (2020) 5 Supreme Court Cases
1, a verdict dated 29.1.2020.;
Raghav Bansal Alias Sahil V. State (Govt. of NCT of
Delhi); Bail Appln. No. 3718/2021 a verdict dated
9.12.2021.;
Central Bureau of Investigation V. Chandraswami
Alias Nemi Chand Jain; (1997) 3 SCCC 214 and ;
Subhash v. The State (NCT of Delhi); Bail Appln. No.
2812/2014 a verdict dated 13.1.2015.
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21. On a consideration of submissions made on behalf of
either side and the record taking into account the submissions
made on behalf of the respondents that the respondents have
already been granted bail vide order dated 6.8.2022 of the
learned Additional Sessions Judge, Patiala House Courts, New
Delhi, the issue involved in the present petition is academic.
22. However, the factum that in terms of the verdict of the
Hon'ble Supreme Court in Union of India V. Padam Narain
Aggarwal Etc.(2008) 13 SCC 305 the order of grant of notice
prior to arrest is not warranted as also laid down in SUSHILA
AGGARWAL AND OTHERS v. STATE (NCT OF DELHI)
AND ANOTHER (supra) in view of the final conclusions in the
said verdict in paragraphs 91 to 93 thereof which read to the
effect:
"91. In view of the concurring judgments of
M.R. Shah, J. and of S. Ravindra Bhat, J.with
Arun Mishra, Indira Banerjee and Vineet
Saran, JJ. agreeing with them, the following
answers to the reference are set out:
91.1. Regarding Question 1, this Court holds
that the protection granted to a person under
Section 438 CrPC should not invariably be
limited to a fixed period; it should enure in
favour of the accused without any restriction
on time. Normal conditions under Section
437(3) read with Section 438(2) should be
imposed; if there are specific facts or features
in regard to any offence, it is open for the
court to impose any appropriate condition
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(including fixed nature of relief, or its being
tied to an event), etc.
91.2. As regards the second question referred
to this Court, it is held that the life or duration
of an anticipatory bail order does not end
normally at the time and stage when the
accused is summoned by the court, or when
charges are framed, but can continue till the
end of the trial. Again, if there are any special
or peculiar features necessitating the court to
limit the tenure of anticipatory bail, it is open
for it to do so.
92. This Court, in the light of the above
discussion in the two judgments, and in the
light of the answers to the reference, hereby
clarifies that the following need to be kept in
mind by courts, dealing with applications
under Section 438 CrPC:
92.1. Consistent with the judgment in
Gurbaksh Singh Sibbia v. State of Punjab ,
whena person complains of apprehension of
arrest and approaches for order, the
application should be based on concrete facts
(and not vague or general allegations)
relatable to one or other specific offence. The
application seeking anticipatory bail should
contain bare essential facts relating to the
offence, and why the applicant reasonably
apprehends arrest, as well as his side of the
story. These are essential for the court which
should consider his application, to evaluate
the threat or apprehension, its gravity or
seriousness and the appropriateness of any
condition that may have to be imposed. It is
not essential that an application should be
moved only after an FIR is filed; it can be
moved earlier, so long as the facts are clear
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and there is reasonable basis for apprehending
arrest.
92.2. It may be advisable for the court, which
is approached with an application under
Section 438, depending on the seriousness of
the threat (of arrest) to issue notice to the
Public Prosecutor and obtain facts, even while
granting limited interim anticipatory bail.
92.3. Nothing in Section 438 CrPC, compels or
obliges courts to impose conditions limiting
relief in terms of time, or upon filing of FIR, or
recording of statement of any witness, by the
police, during investigation or inquiry, etc.
While considering an application (for grant of
anticipatory bail) the court has to consider the
nature of the offence, the role of the person,
the likelihood of his influencing the course of
investigation, or tampering with evidence
(including intimidating witnesses), likelihood
of fleeing justice (such as leaving the country),
etc. The courts would be justified -- and ought
to impose conditions spelt out in Section
437(3) CrPC [by virtue of Section 438(2)]. The
need to impose other restrictive conditions,
would have to be judged on a case-by-case
basis, and depending upon the materials
produced by the State or the investigating
agency. Such special or other restrictive
conditions may be imposed if the case or cases
warrant, but should not be imposed in a
routine manner, in all cases. Likewise,
conditions which limit the grant of anticipatory
bail may be granted, if they are required in the
facts of any case or cases; however, such
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limiting conditions may not be invariably
imposed.
92.4. Courts ought to be generally guided by
considerations such as the nature and gravity
of the offences, the role attributed to the
applicant, and the facts of the case, while
considering whether to grant anticipatory bail,
or refuse it. Whether to grant or not is a matter
of discretion; equally whether and if so, what
kind of special conditions are to be imposed
(or not imposed) are dependent on facts of the
case, and subject to the discretion of the court.
92.5. Anticipatory bail granted can, depending
on the conduct and behaviour of the accused,
continue after filing of the charge-sheet till end
of trial.
92.6. An order of anticipatory bail should not
be "blanket" in the sense that it should not
enable the accused to commit further offences
and claim relief of indefinite protection from
arrest. It should be confined to the offence or
incident, for which apprehension of arrest is
sought, in relation to a specific incident. It
cannot operate in respect of a future incident
that involves commission of an offence.
92.7. An order of anticipatory bail does not in
any manner limit or restrict the rights or duties
of the police or investigating agency, to
investigate into the charges against the person
who seeks and is granted pre-arrest bail.
92.8. The observations in Sibbia regarding
"limited custody" or "deemed custody" to
facilitate the requirements of the investigative
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authority, would be sufficient for the purpose
of fulfilling the provisions of Section 27, in the
event of recovery of an article, or discovery of
a fact, which is relatable to a statement made
during such event (i.e. deemed custody). In
such event, there is no question (or necessity)
of asking the accused to separately surrender
and seek regular bail. Sibbia had observed
that :.
"19. ... if and when the occasion arises, it may
be possible for the prosecution to claim the
benefit of Section 27 of the Evidence Act in
regard to a discovery of facts made in
pursuance of information supplied by a person
released on bail by invoking the principle
stated by this Court in State of U.P. v. Deoman
Upadhyaya.
92.9. It is open to the police or the
investigating agency to move the court
concerned, which grants anticipatory bail, for
a direction under Section 439(2) to arrest the
accused, in the event of violation of any term,
such as absconding, non-cooperating during
investigation, evasion, intimidation or
inducement to witnesses with a view to
influence outcome of the investigation or trial,
etc.
92.10. The court referred to in para 92.9
above is the court which grants anticipatory
bail, in the first instance, according to
prevailing authorities.
92.11. The correctness of an order granting
bail, can be considered by the appellate or
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superior court at the behest of the State or
investigating agency, and set aside on the
ground that the court granting it did not
consider material facts or crucial
circumstances. (See Prakash Kadam v.
Ramprasad Vishwanath Gupta ; Jai Prakash
Singh ; State of U.P. v. Amarmani Tripathi .)
This does not amount to "cancellation" in
terms of Section 439(2) CrPC.
92.12. The observations in Siddharam
Satlingappa Mhetre v. State of Maharashtra
(and other similar judgments) that no
restrictive conditions at all can be imposed,
while granting anticipatory bail are hereby
overruled. Likewise, the decision in Salauddin
Abdulsamad Shaikh v. State of Maharashtra
and subsequent decisions (including K.L.
Verma v. State , Sunita Devi v. State of Bihar ,
Adri Dharan Das v. State of W.B. , Nirmal Jeet
Kaur v. State of M.P. , HDFC Bank Ltd. v. J.J.
Mannan , Satpal Singh v. State of Punjab and
Naresh Kumar Yadav v. Ravindra Kumar )
which lay down such restrictive conditions, or
terms limiting the grant of anticipatory bail, to
a period of time are hereby overruled.
93. The reference is hereby answered in the
above terms."
23. Though it is advisable for the Court as directed thereby
vide conclusions in paragraphs 92.2 on a Court being
approached with an application under Section 438 of the
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Cr.P.C., 1973 depending on the seriousness of threat of arrest to
issue notice to the Public Prosecutor and obtain facts even
whilst granting even interim anticipatory bail and thus for the
period to which the Court renotifies the matter on calling for a
response from the Public Prosecutor after issuance of notice, it
would be open to the Court seized of an application under
Section 438 of the Cr.P.C., 1973 in terms of the conclusion in
para 92.2 in SUSHILA AGGARWAL AND OTHERS v.
STATE (NCT OF DELHI) AND ANOTHER (Supra) to grant
limited interim anticipatory till the said date which is the
appropriate course of action in terms of the verdict SUSHILA
AGGARWAL AND OTHERS v. STATE (NCT OF DELHI)
AND ANOTHER (supra) rather than of directions being issued
to the Investigating Officer to issue notice prior to arrest, even if
they be limited to the FIR and the offences in question qua
which the application has been filed.
24. As regards the submissions made on behalf of the
petitioner that it was not appropriate for the learned Additional
Sessions Judge concerned vide order dated 17.5.2022 to make
observations in relation to the mode of investigation, it is
essential to observe that vide the impugned order, the learned
Additional Sessions Judge has not in any manner interfered with
the investigation of the case in relation to the FIR No. 218/2020
Police Station EOW and has only brought forth on record the
aspect of a closure report in relation to the complaint made by
the father of some of the very same complainants having been
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submitted by the Chennai police so that there is a fairness in the
investigation to be conducted.
25. The petitions call for no further action and are disposed
of accordingly and the accompanying applications are disposed
of.
Nothing stated herein above shall however amount to any
expression on the merits or demerits of any proceedings in
relation to the FIR No. 218/2020 Police Station EOW.
ANU MALHOTRA, J.
NOVEMBER 25, 2022/sv
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