The Delhi High Court has recently in one of its ruling has reflected on whether Courts can deny bail solely on the ground of magnitude of offence.

The Bench comprising of Justice Subramonium Prasad while dealing with a plea wherein the accused was involved in the multi-person scam involving more than ₹200 crores, analysed whether any precedent allows the same and how the objective of bail fits into the above aspect.

Brief Facts of the Case

The petitioner herein was tied with offences under Sections 406/420/409/120B of the Indian Penal Code, 1860. He has been accused of a massive scam scam involving more than ₹200 crores.

Learned Counsel for the petitioner disputed the allegations levelled which was vehemently opposed by the Public Prosecutors.

Learned Counsel for petitioner submitted that the Petitioner has been languishing in jail since 09.12.2020. He submitted that no recovery has been made from him or at his instance, and that, therefore, there is no link tying the Petitioner to the alleged scam. He brings to the attention of this Court that the Petitioner is neither an authorized signatory nor a director of the accused Company, and that there is nothing to suggest that the Petitioner was associated with the accused Company.

He cited SC Ruling in Sadhupati Nageswara Rao Vs. State of Andhra Pradesh, 2012 Latest Caselaw 407 SC to submit that the essential ingredient for invoking both Sections 406 and 409 IPC is "entrustment‟ and there is no evidence which suggests that the Petitioner had ever been entrusted with any money or property. He further argued that the FIR in the present case was registered two years ago and that till date the investigation is nowhere near completion. Mr. Rana submits that the declaration of PO is misconceived as the Petitioner had no intention to evade the law and was merely exercising his legal remedy of seeking anticipatory bail.

He further submitted that the trial is likely to take a long while and the petitioner is sole earning member in his family, and that chargesheet as well as supplementary chargesheet have already been filed. He further stated that the evidence is primarily documentary in nature and the same is already in the custody of the police. Therefore, further incarceration of the Petitioner is not required and that the Petitioner is liable to be granted regular bail.

High Court Observation

After careful examination and listening to both the sides, the Court concluded that ingredients of Section 420/409/120-B IPC are easily made out against the Petitioner.

The Court took note of the fact that the petitioner never joined the investigation despite several notices under Section 41A Cr.P.C. being issued to him. He was also found to be absconding when efforts were made to arrest him. 

"Accordingly, an NBW was obtained against the Petitioner and he was declared an Absconder vide Court order dated 17.02.2020. It further reveals that the Petitioner was in conspiracy with the other Directors and that he was the authorized signatory of the bank accounts of the accused Company. Further, during the investigation, it was found that the Petitioner had two PAN cards. The chargesheet states that the accused persons, including the Petitioner, made false promises and received payments of crores of rupees from a large number of people with no intention of returning the money or fulfilling the promises. It states that by way of fraudulent misrepresentation, concealment of material facts and false assurances, the general public was induced to invest in the accused Company and part with their hard-earned money"

The Court remarked that the gravity of the offences is such that if the Petitioners are subsequently convicted, they will be liable to be sentenced to undergo imprisonment for life.

"A perusal of the chargesheet, therefore, indicates that both the Petitioners were involved in the multi-person scam involving more than Rs. 200 crores from the inception of the same and that both were instrumental in misleading the public into investing in the scheme with no intention of returning the money. There are more than 900 complaints till date which have been made pertaining to the scam and the investigation has revealed that the Petitioners played an integral role, right from inducing the public to the siphoning off of the cheated money. Further, multiple other FIRs are also pending against both the Petitioners."

The Court went onto analyse whether the gravity of the offence is enough ground to deny petitioner the bail. The Court cited SC Judgement in Sanjay Chandra Vs. CBI , 2011 Latest Caselaw 860 SC to deny the same as it was held in the same that gravity of the offence cannot be the sole ground to deny bail to the Petitioners.

"The magnitude of the offence cannot be the only criterion for denial of bail. The object of bail is to secure the presence of the accused at the time of trial; this object is, thus, neither punitive nor preventative, and a person who has not been convicted should only be kept in custody if there are reasons to believe that they might flee from justice or tamper with the evidence or threaten the witnesses. If there is no apprehension of interference in administration of justice in a criminal trial by an accused, then the Court should be circumspect while considering depriving the accused of their personal liberty. Mere vague belief that the accused may thwart the investigation cannot be a ground to prolong the incarceration of the accused."

The Court, in view of the above granted bail to the petitioner while noting that whether or not the cheated money was entrusted to the Petitioners is a matter of trial and cannot be taken into consideration at this juncture.

Read Order Here:

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Sheetal Joon