[Cites 21, Cited by 0]
Delhi High Court
Subham Saxena vs State Nct Of Delhi & Anr on 9 March, 2026
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: March, 09, 2026
+ BAIL APPLN. 5038/2025
SUBHAM SAXENA .....Applicant
Through: Mr. Vikas Pahwa, Sr. Adv. with
Mr. Meenesh Dubey, Mr Jasmeet
Singh Chadha, Mr. Sohraab Singh
and Mr Muhammad Maroof, Advs.
Versus
STATE NCT OF DELHI & ANR. .....Respondents
Through: Mr. Satish Kumar, APP with Ms.
Upasna Bakshi, Adv.
Ms. Sowjhanya Shankaran, Adv.
for R-2 (VC)
Insp. Harpal Madan with SI Sanjay
Kumar, PS: EOW
CORAM:
HON'BLE MR. JUSTICE SAURABH BANERJEE
J U D G M E N T (ORAL)
1. By virtue of the present application under Section 483 of the
Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) read with Section 439
of the Code of Criminal Procedure, 1973 (Cr.P.C), the applicant seeks
grant of regular bail in proceedings arising out of FIR No.144/2021 dated
23.09.2021 registered at PS: Economic Offences Wing, District South-
East, Delhi under Sections 408/476/468/471/120-B of the Indian Penal
Code, 1860 (IPC).
2. Succinctly put, a complaint was received on 19.08.2021 on behalf of
the complainant/ respondent no.2 herein, being a company engaged in the
business of real estate development, against the applicant herein, one of its
employee since the year 2009, the Assistant Manager (Accounts) then, to
the effect that he had siphoned away major funds of the complainant
company by creating sham accounts of fictitious vendors, and
misappropriated huge sums of money in favour of himself, as well as his
family members and close associates. The preliminary enquiry conducted
by the Police led to registration of the present FIR. The applicant was then
arrested on 07.11.2021 during the course of investigation.
3. After filing of charge-sheet, supplementary charge-sheet has also
been filed. In fact, charges have also been framed against the applicant by
the learned Chief Judicial Magistrate, South-East District, Saket Courts,
New Delhi (Trial Court) on 17.02.2025.
4. Learned (senior) counsels for the applicant as well as the
complainant company have handed over their respective written synopses,
which are taken on record.
5. It is primarily the case of the applicant that he has already been in
judicial custody for more than four years and four months, and till date,
out of the 34 prosecution witnesses, only one has partly been examined in-
chief. Relying upon Arvind Dham vs. Enforcement Directorate:2026
SCC OnLine SC 30, learned senior counsel for the applicant submits that
prolonged incarceration of the applicant without any reasonable progress
in the trial is in gross violation of his fundamental rights under Article 21
of the Constitution of India. Reliance in this regard is placed upon Javed
Gulam Nabi Shaikh vs. State of Maharashtra:(2024) 9 SCC 813
highlighting the fundamental right of an accused to a speedy trial under
Article 21 of the Constitution of India even in the context of special
Act(s).
6. Learned senior counsel further submits that the offence of forgery
of valuable security under Section 467 IPC is not made out against the
applicant, since the only allegation qua the same is that the applicant
gained access to the bank account of the complainant company at IndusInd
Bank on the basis of a purported Board Resolution dated 14.02.2017,
however, it is nowhere the case of the prosecution or opined in the CFSL
Report that it was the applicant who forged the same. Relying upon Sheila
Sebastian vs. R. Jawaharaj:(2018) 7 SCC 581, the learned senior counsel
submits that other offences alleged against the applicant are less serious,
carrying maximum punishment(s) of up to seven years of imprisonment.
7. Learned senior counsel further submits that there has been a major
change in circumstances since dismissal of the previous bail application of
the applicant before this Court, as the trial has commenced thereafter and
is yet far from conclusion, making the applicant eligible to seek bail under
Section 437(6) Cr.P.C. Reliance in this regard is placed upon Subhelal @
Sushil Sahu vs. State of Chattisgarh:(2025) 5 SCC 140 as also order
dated 17.08.2022 passed by the High Court of Punjab and Haryana in
CRM-M-18492-2022 entitled 'Raman Kumar vs. State of Punjab'. The
learned senior counsel also relies upon the order dated 15.01.2025 passed
in Bail Appln.4572/2024 entitled 'Sidharth Kumar vs. E.D.', order dated
20.05.2024 passed in Bail Appln.2882/2023 entitled 'Vineet vs. State' and
order dated 27.10.2022 passed in Bail Appln.96/2022 entitled 'Dharamvir
@ Kalu vs. State & Anr.' by Coordinate Benches of this Court to submit
that every day in custody amounts to a change in circumstances; as also
upon order dated 13.02.2025 passed in SLP (Crl.) No.17918/2024 entitled
'Vipin Kumar vs. State of U.P.' and order dated 28.02.2025 passed in
SLP (Crl.) No.808/2025 entitled 'Kamal @ Kamal Choudhary vs. State of
Madhya Pradesh' by the Hon'ble Supreme Court to submit that dismissal
of bail application by the Hon'ble Supreme Court does not bar the
applicant from filing a subsequent application.
8. Based on all the aforesaid, as also since the applicant has deep roots
in society with no criminal antecedents and relying upon P. Chidambaram
vs. Directorate of Enforcement:(2020) 13 SCC 791, learned senior
counsel submits that the applicant ought to be released on bail.
9. Per contra, learned APP for the State submits that no case for grant
of bail to the applicant is made out, since investigation has revealed the
quantum of money involved in the crime to be almost Rs.22 Crores.
Drawing attention of this Court to the mobile/ internet banking details and
physical and email addresses involved, he submits that there is a strong
prima facie case against the applicant, that too as the kingpin of the entire
conspiracy.
10. Learned APP further submits that despite being provided an
opportunity to join the enquiry by the Police, the applicant did not join
and/ or participate, and in fact absconded alongwith his family, and had to
then be traced and subsequently arrested. Hence, there will be every
possibility of him evading the process of law, if granted bail.
11. Learned counsel for the complainant company, in support of the
aforesaid contentions of the learned APP, submits that the applicant has
been consistently denied bail by the learned Trial Court, the learned
Sessions Court, this Court, as well as the Hon'ble Supreme Court. Further,
that the offence under Section 467 IPC is clearly made out against the
applicant, which is a serious offence punishable as to life imprisonment.
12. Learned counsel further submits that the applicant cannot seek bail
on the ground of prolonged incarceration, especially when the Hon'ble
Supreme has also held in Gulfisha Fatima vs. State:2026 SCC OnLine
SC 10 that Article 21 of the Constitution of India ought not to be
considered in isolation without keeping in mind the gravity of the offences
and other relevant factors involved. Also, the delay in the present case is
attributable to multiple revision petitions filed by seven accused persons
across different Courts, alongwith the applicant's own arguments before
the learned Trial Court that it ought to hold its hands till decision in the
said petitions, and hence, the applicant cannot be allowed to take benefit
of his own delays at this stage.
13. This Court has heard learned (senior) counsels for the parties as
well as learned APP for the State and perused the documents and Status
Report on record as also the judgments cited at the bar.
14. At the outset, though no doubt Article 21 of the Constitution of
India is a fundamental right guaranteed to the applicant, however, the
same is to be evaluated holistically with the entire facts and circumstances
involved, especially when they are relating to offences of the present
nature containing a strong element of public economic welfare, and which
is to be accorded due relevance. The applicant herein is allegedly the main
brain behind the alleged economic fraud, that too, to the tune of nearly
Rs.22 Crores, involving repeated sham transactions carried out through
multiple bank accounts of the complainant company dealing in real estate
wherein, presumably, public monies of unsuspecting members are
invested from time to time. Further the applicant was holding a position of
relevance in the complainant company, and the nature of transactions
revealed in the investigation, prima facie reflects his involvement.
15. Reliance on Arvind Dham (supra) by learned senior counsel for the
applicant is misplaced, as the same was passed expressly considering that
the offences therein were punishable with a maximum term of
imprisonment for seven years, as well as that the appellant therein had
joined the investigation prior to his arrest. In contrast thereto, firstly, under
Section 467 IPC, the maximum punishment imposable is imprisonment for
life. Any contentions thereto, especially qua the charges under Section 467
IPC, are a matter of trial and need not be dwelled into at this stage.
Secondly, as per prosecution, upon being asked to join the enquiry, the
applicant herein absconded alongwith his family members, who were also
a part of the alleged conspiracy, hampering the investigation, to which
there is no counter by the learned senior counsel for the applicant.
16. Similarly, reliance upon Subhelal @ Sushil Sahu (supra) as well as
Raman Kumar (supra) by learned senior counsel for the applicant is also
of no assistance, as the same nowhere lay down that Section 437(6) creates
an absolute right to bail in favour of the applicant, and the Hon'ble
Supreme Court in Subhelal @ Sushil Sahu (supra) has in fact emphasised
on factors such as the proportion of sentence undergone out of the
maximum sentence prescribed, chances of abscondence and evidence
tampering and whether the delay in trial is attributable to the applicant.
17. Thus, the maximum sentence prescribed in the present case being
imprisonment for life assumes relevance, alongwith the previous conduct
of the applicant when he evaded investigation and absconded with his
family. Further, the widespread nature of transactions involving siphoning
off funds to around 11 individuals/ entities and further redistribution
amongst about 28 entities, which are prima facie revolving around the
applicant, give an impression that there is a risk of the applicant tampering
with the evidence(s) involved and/ or unduly influencing the witnesses,
who are yet to be examined. Moreover, it is also to be considered that
whether the applicant has not attributed any delay in the trial. In fact, the
multiple revision petitions filed by the accused persons and the applicant
asking for a stay before the learned Trial Court is another fact to be taken
into consideration. As such, delay, if any, and that too of this nature is
simplicitor not sufficient for being considered as a ground for grant of bail
to the applicant.
18. Therefore, although it is trite that the gravity of the offence is not
the sole criteria for denial of bail, and though the applicant, who has the
right to a speedy trial, has been in incarceration for over four years and
four months, taking a holistic view of the entire facts and circumstances
involved, the vital factors at play as enumerated hereinabove taken
cumulatively, are clearly and overwhelmingly against grant of bail to the
applicant. Therefore, it cannot be said that the applicant has crossed the
triple-test laid down in P. Chidambaram (supra).
19. Lastly, in light of the afore-going analysis and reasons, reliance
upon Siddharth Kumar (supra), Vineet (supra), Dharamvir @ Kalu
(supra), Vipin Kumar (supra), Kamal @ Kamal Choudhary (supra) by
learned senior counsel for the applicant is of no avail.
20. Accordingly, the present application is dismissed.
21. Needless to say, since the expressions of opinion, if any, are for the
purpose of adjudication of the present application only, they shall have no
bearing on the overall merits/ trial involved in the matter.
SAURABH BANERJEE, J.
MARCH 9, 2026/So/RS
