The Allahabad High Court has rejected the anticipatory bail plea of Satish Chandra Gupta, a London (U.K)-based accused in the crores rupees scam.
A Single Bench of Justice Sameer Jain passed this order while hearing a Criminal Misc Anticipatory Bail Application filed by Satish Chander Gupta.
The anticipatory bail application has been filed on behalf of the applicant to enlarge him on anticipatory bail in Sessions Trial under Section 447 of the Companies Act arising out of Complaint U/ s 439 (2) R/W, Section 436 (1)(a) & (d) R/W Proviso to Section 212(6) R/ W 212 (14) of the Companies Act, 2013 R/W 621 (1) of the Companies Act, 1956 pending in the Court of Special Judge (Companies Act)/ Additional Sessions Judge, Kanpur Nagar.
At the very outset, R.P.S Chauhan, counsel appearing on behalf of Union of India raised following preliminary objections:-
(a) applicant directly approached this Court for his pre arrest bail under Section 438 Cr.P.C. without approaching the court concerned under Section 438 Cr.P.C.
(b) applicant is a resident of the United Kingdom (U.K) and is residing in the U.K and not in India, therefore, there is no apprehension of his arrest.
Counsel appearing on behalf of Union of India submitted that applicant straight-way filed instant anticipatory bail application before the Court without approaching the court concerned and no special circumstances has been disclosed by him in this regard, therefore, considering the law laid down by the Full Bench of Five Judges of this Court in the case of Ankit Bharti and others Vs State of U.P and another 2020 (3) ADJ 575, the instant anticipatory bail application is not maintainable.
He further submitted that admittedly applicant is the resident of London (U.K.) and investigation of the case has already been concluded and on the basis of the complaint, he has been summoned and till date no warrant has been issued against him, therefore, applicant is not having any belief of his arrest, therefore, on this ground also the instant anticipatory bail application is not maintainable.
He also submitted that if the applicant is released on anticipatory bail then under the pretext of order of pre-arrest bail, he will never return to India for trial. He further submits that no blanket protection can be given to the applicant under Section 438 CrPC.
He further submitted that there are several examples in the past, if an accused once fled from India he never turned up to face the legal proceedings.
Against the preliminary objections raised by the counsel appearing on behalf of Union of India, learned Senior Advocate appearing on behalf of the applicant submitted that from perusal of the provisions of Section 438 CrPC it is apparent that anticipatory bail application can be filed either before the court of sessions or before the Court, therefore, if applicant opted to file the anticipatory bail application directly before the Court then he did not commit any illegality and it cannot be said that his anticipatory bail application is not maintainable.
The Court noted that,
From the record, it reflects that a criminal complaint was filed against the applicant and several others under the provisions of Companies Act. Applicant, is the accused in the complaint and as per allegation he was Ex Director in a Foreign Entity and he also connived with other entities in running of fraudulent/abusive merchanting trade business and thus caused huge losses of crores of rupees to the bank and is liable to be punished for offence under Section 447 of Companies Act, 2013.
Five Judges Full Bench of this Court in the case of Ankit Bharti (supra) held, the anticipatory bail application can be filed before this Court directly but only in special circumstances and special circumstances must necessarily exist and be established as such before jurisdiction of the Court is invoked directly.
As per five judges Full Bench of the Court an application for pre-arrest bail can only be entertained by this Court directly in only exceptional circumstances and not in routine manner and for entertaining such application directly special circumstances must exist.
In case at hand, in the entire anticipatory bail application, applicant did not disclose any special circumstances why he directly approached this Court without approaching the court concerned under Section 438 Cr.P.C, however, in the supplementary affidavit dated 26.11.2023 applicant averred that in view of the provisions of Section 438 Cr.P.C there is no bar if applicant directly files anticipatory bail application before the Court. In view of the Court, it is not a special circumstance on the basis of which, the instant anticipatory bail application can be entertained directly by the Court.
Further, applicant is the resident of London (U.K) and as per the view expressed by the Single Judge of the Court in the case of Vinod Kumar (supra), which was approved by the Full Bench of the Court in the case of Ankit Bharti (supra) if an accused resides outside the concerned jurisdiction of sessions judge, then he can file anticipatory bail application directly before the Court if faces threat of arrest. Even five judges of the full Bench of the Court in case of Ankit Bharti (supra) held that such application must rest on strong foundation with regard to apprehension of arrest. Therefore, threat of arrest of the applicant is necessary for maintainability of his anticipatory bail application directly before the Court.
The second objection of the Union of India is also with regard to belief of arrest of the applicant. Therefore, the core issue is whether the applicant is having belief in his arrest.
In the case at hand, admittedly the applicant is not residing in India and he is resident of London (U.K). The investigation of the case has already been concluded and one complaint applicant was summoned along with others and till date no warrants have been issued against him. Therefore, the question is whether the applicant still has belief in his arrest.
“In the case of Vijay Babu (supra) it appears that the investigation of the case was pending, therefore, the Single Judge of the Kerala High Court observed in that context that due to the advancement in investigative technology and communication, the various agencies of investigation could even arrest a person outside the India but in case at hand, investigation has already been concluded and after filing of complaint till date only summons have been issued against the applicant. Therefore, prima facie in the matter it appears, there is no apprehension of the arrest of applicant who resides in London (U.K).
Further, the Court finds force in the argument advanced by learned counsel appearing on behalf of Union of India that if blanket protection is given to the applicant under Section 438 Cr.P.C then possibility cannot be ruled out that he will never return to India.
Therefore, considering the facts and circumstances of the case discussed above, in my view, both the preliminary objections raised by Union of India are well founded and instant anticipatory bail application is not maintainable”, the Court further observed while rejecting the bail application.