Madhya Pradesh High Court
Pramod Sethi vs The State Of Madhya Pradesh on 21 September, 2023
Author: Vijay Kumar Shukla
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
ON THE 21 st OF SEPTEMBER, 2023
MISC. CRIMINAL CASE No. 24427 of 2023
BETWEEN:-
PRAMOD SETHI S/O SHRI DARSHAN LAL SETHI R/O 01
GULMOHAR EXTENSION INDORE (MADHYA PRADESH)
.....APPLICANT
(BY SHRI PUNEET JAIN - ADVOCATE WITH SHRI UMANG MEHTA AND
SHRI HARSHIT SHARMA - ADVOCATES)
AND
THE STATE OF MADHYA PRADESH STATION HOUSE
OFFICER THROUGH P.S. TUKOGANJ (MADHYA
PRADESH)
.....RESPONDENT
(BY SHRI TARUN PAGARE - G.A.)
This application coming on for admission this day, the court passed
the following:
ORDER
This is second application u/S.438 of Cr.P.C for grant of anticipatory
bail to the applicant in connection with Crime No.307/2020 registered at P.S
Tukoganj, Indore for offence punishable u/Ss.420, 406 and 34 of IPC and
u/S.6(1) of the M.P. Nikshepakon Ke Hiton Ka Sanrakshan Adhiniyam, 2000
(hereinafter referred to as "Adhiniyam"). The first application was filed jointly
with co-accused with Raghav Sethi vide M.Cr.C.No.33001/2022. The said
application was withdrawn with liberty to file separate application for the
applicants. The application was dismissed with the aforesaid liberty.
Signature Not Verified
Thereafter the present application has been filed separately on behalf of the
Signed by: VARGHESE
MATHEW
Signing time: 21-09-2023
18:15:29
applicant Pramod Sethi.
2. An objection has been raised regarding maintainability of anticipatory
bail application in view of the provisions of Sec.14 of Adhiniyam, 2000. The
provisions of Sec.14 of the Act reads as under:-
"14 - Anticipatory bail not be granted - Notwithstanding
anything contained in Sec.438 of Code of Criminal
Procedure 1973 (No.2 of 1974), no Court shall grant
anticipatory bail to any person under the Act."
3. Counsel for applicant submits that the para materia provisions under
the similar Act in State of Chhattisgarh has been considered by the division
bench of High Court of Chhattisgarh, Bilaspur in WP(Cr.) No.141/2023 after
referring to the various judgments of the Supreme Court in the case of Hema
Mishra Vs. State of U.P. & ors. (2014) 4 SCC 453 and also the judgment
passed in the case of Prathviraj Chauhan Vs. Union of India (2020) 4 SCC
727 and it has been held that there is no absolute bar for grant of anticipatory
bail. The para materia provision of Sec.15 of the Chhattisgarh Protection of
Depositors Interest Act, 2005 reads as under:-
"15 - Anticipatory bail not to be granted -
Notwithstanding anything contarined in Section 438
of the Code of Criminal Procedure 1973 (No.2 of
1974), no application for anticipatory bail shall lie
for an offence punishable under the Act."
4. Upon perusal of the provisions of Sec. 14 of M.P. Act of Adhiniyam
2000 and Sec.15 of Act 2005, it is evident that the provisions are almost para
materia.
5. The relevant paragraphs of the judgment of Division Bench of
Chhattisgarh High Court are reproduced as under:-
Signature Not Verified
Signed by: VARGHESE
MATHEW
Signing time: 21-09-2023
18:15:29
"12. By virtue of Section 15 of the Act of 2005, no
application for anticipatory bail would lie for an
offence punishable under the Act of 2005, as the
provisions of the Act of 2005 would have overriding
effect over Section 438 of the CrPC. Right of the
accused in anticipatory bail is definitely a most
essential safeguard for liberty of a person and it is
necessary to meet the obvious cases of misuse of police
power. Section 15 of the Act of 2005 bars the
application of Section 438 of the CrPC for grant of
anticipatory bail for an offence punishable under the
Act of 2005. However, their Lordships of the Supreme
Court in umpteen number of cases have held that where
prima facie case is not made out, the Court is not bereft
of its power to grant benefit of anticipatory bail in
appropriate cases of exceptional nature.
13.In the matter of Prathvi Raj Chauhan v. Union of
India and others' (2020) 4 SCC 727 while examining
challenge to the constitutionality of Section 18-A of the
Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 (for short, 'the Act of 1989'), their
Lordships of the Supreme Court have examined the
scope of Section 18 of the Act of 1989 also with
particular reference to maintainability of application
for grant of anticipatory bail under Section 438 of the
CrPC as against statutory bar created under Section 18
of the Act of 1989 and it has been held that despite such
a statutory bar created, such a bar may not come in the
way for grant of anticipatory bail by taking recourse to
the provision contained in Section 438 of the CrPC
where complaint does not make out a prima facie case
for applicability of the provisions of the Act of 1989. It
was observed as under:
"11. Concerning the applicability of provisions of
Section 438 CrPC, it shall not apply to the cases
under the 1989 Act. However, if the complaint does
not make out a prima facie case for applicability of
the provisions of the 1989 Act, the bar created by
Signature Not Verified
Signed by: VARGHESE
MATHEW
Signing time: 21-09-2023
18:15:29
Sections 18 and 18-A(i) shall not apply. We have
clarified this aspect while deciding the review
petitions."
In separate but concurring judgment rendered by S.
Ravindra Bhatt, J., also it was held as under:
"33. I would only add a caveat with the observation
and emphasize that while considering any
application seeking pre-arrest bail, the High Court
has to balance the two interest: i.e. that the power
is not used as to convert the jurisdiction into that
under Section 438 of the Criminal Procedure Code,
but that it is used sparingly and such orders made
in very exceptional cases where no prima facie
offence is made out as shown in the FIR, and
further also that if such orders are not made in
those classes of cases, the result would inevitably
be a miscarriage of justice or abuse of process of
law. I consider such stringent terms, otherwise
contrary to the philosophy of bail, absolutely
essential, because a liberal use of the power to
grant pre-arrest bail would defeat the intention of
Parliament."
15. Reverting finally to the facts of the present case in
light of the of principles law laid down by their
Lordships of the Supreme Court in the aforesaid
judgments, it is quite vivid that where no prima facie
material exists warranting arrest in complaint or where
the complaint does not make out a prima facie case
under the Act of 2005, the concerned Court will have
power and jurisdiction to consider the application for
grant of anticipatory bail in appropriate case
exceptional nature and in that case, bar under Section
15 of the Act of 2005 would not come in way to consider
the application under Section 438 of the CrPC.
Accordingly, we clarify the legal position."
6. In the case of Prathviraj Chauhan (supra), the Apex Court has taken
into consideration the bar of anticipatory bail u/S.18 and 18-A under Scheduled
Signature Not Verified
Signed by: VARGHESE
MATHEW
Signing time: 21-09-2023
18:15:29
Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and held that
there is no absolute bar for grant of anticipatory bail if no prima facie case is
made out against the applicant from the complaint.
7. On the basis of aforesaid judgments, the Chhattisgarh High Court has
held in par 15 that where prima facie case is not made out, the court will have
the power to grant benefit of anticipatory bail in appropriate cases of
exceptional nature. In para 15 it is held that as per the judgment of the Supreme
Court, it is quite vivid where no prima facie material except warranting arrest in
complaint or where the complaint does not make out a prima facie case under
the Act 2005, the concerned Court will have power and jurisdiction to consider
the application for grant of anticipatory bail in appropriate case of exceptional
nature and in that case bar u/S.15 of the Act 2005 would not come in way to
consider the application u/S.438 of Cr.P.C.
8. The constitutional validity of provisions u/S.59-A(1) of the M.P.
Excise Act, 1915 providing a bar for grant of anticipatory bail, was considered
in a case of Naresh Kumar Lahria Vs. State of M.P. & Ors. WP
No.6897/2000 decided on 15.9.2003 by division bench of this court. In the
said case Their Lordships considered the validity, constitutionality and validity
of the provisions of Sec.59-A of the Excise Act and held that there is no
absolute bar of grant of anticipatory bail if the complaint prima facie does not
make out any case.
9. In view of the aforesaid enunciation of law, I am of the considered
view that the application for anticipatory bail is maintainable and the bar u/S.14
of the Adhiniyam 2000 would not apply in the cases where no prima facie
material exists warranting arrest in the complaint and where the complaint does
Signature Not Verified
Signed by: VARGHESE
MATHEW
Signing time: 21-09-2023
18:15:29
not make out a prima facie case. The Court has power and jurisdiction to
consider the application for grant of anticipatory bail in appropriate case of
exceptional nature and the bar u/S.14 would not come in the way to consider
the application u/S.438 of C.P.C.
10. Thus, the objection of learned counsel for State that anticipatory bail
application is not maintainable is rejected.
11. Now, this Court has to advert to the merits of the case.
12. As per the prosecution a complaint was made by Himanshu Sharma
and others alleging that the applicant and the other co-accused persons are
Directors of the company and they are involved in Real Estate and construction
business. It is alleged that the present applicant had persuaded the
complainants to make investment in their project and to become partners of the
said project and they will get the fixed profit. On the assurance of the applicant
who is Director of the company, the amounts were transferred to the account of
the Directors of the company. Some payments were made by the Directors but
thereafter they stopped the payment and despite completion of the project, the
fixed profit was not granted to the complainants.
13. Counsel for applicant submits that no amount has been transferred
in the account of the applicant and the payments were made individually to
Rohan Sethi and Raghav Sethi who happens to be his sons and Directors of the
company. There is no payment made to the account of the applicant and,
therefore, prima facie there is no material against the applicant and as per the
definition of Sec.2(b) and 2(c) of the Adhiniyam, no case is made out and the
provisions of the Act would not apply to the case of the present applicant. It is
further submitted that the applicant has co-operated with the investigation and
his statement was also recorded. It is further submitted that on similar
Signature Not Verified
Signed by: VARGHESE
MATHEW
Signing time: 21-09-2023
18:15:29
complaint made by Nita Bhandari, the police has closed the case on the ground
that the dispute was of civil nature. The charge sheet in respect of the other co-
accused persons has already been filed and one of the co-accused person
Rohan Sethi has been granted regular bail by the Apex Court.
14. Counsel for State opposed the prayer for grant of anticipatory bail
and submits that the FIR is lodged by name. The applicant is one of the
Director of the company. As per the complaints and FIR, there is specific
allegation by Himanshu Sharma that on the assurance of the applicant he had
made payment to the account of the present applicant by City Bank Cheque
No. 430968/RTGS No. CITIHI 6096881142 on 5.4.2016 and the applicant has
issued the receipt in this regard. It is also submitted that in the statement
u/S.161 Cr.P.C. Himanshu Sharma has made specific allegation that the
applicant had issued cheque of closed account of Bank of Baroda towards
payment of profit. He had intention to defraud the complainants and to cheat
them. Thus, prima facie there is material against the applicant and it cannot be
said that there is no prima facie allegation and material against the applicant. It
is submitted that the allegation is in respect of huge amount involved in the
present case is Rs.4,56,72,015/-. The investigation u/s.173(8) of Cr.P.C is still
pending against the applicant. The applicant is habitual criminal and there is
another case of similar allegations registered at Crime No.542/2021 at P.S.
Tukoganj, Indore for commission of offence u/Ss.420, 409, 506 of IPC.
15. After hearing learned counsel for parties and taking into
consideration the specific allegations made in the FIR by the complainant
Himanshu Sharma and in his statement u/S.161 Cr.P.C, it cannot be held that no
prima facie material is against the applicant. There is prima facie material
Signature Not Verified
Signed by: VARGHESE
MATHEW
Signing time: 21-09-2023
18:15:29
against the applicant in respect of cheating of huge amount of more than rupees
four crore in the present case by getting deposits from the complainants. The
applicant is facing another criminal case on similar charges. The alternative
prayer of the applicant to direct the respondents to comply with the provisions
of Section 41-A of Code of Criminal Procedure in the light of judgment passed
by the Apex Court in the case of Arnesh Kumar Vs. State of Bihar (2014) 8
SCC 273 has no merit as the counsel for the State submits that notice was
issued to the applicant and his statement was recorded before registering the
offence. The applicant is absconding since long. Thus, the present case is not
a case for grant of anticipatory bail.
16. The application is dismissed.
(VIJAY KUMAR SHUKLA)
JUDGE
VM
Signature Not Verified
Signed by: VARGHESE
MATHEW
Signing time: 21-09-2023
18:15:29
