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CASE NO.:

Writ Petition (crl.) 245-246 of 2000

PETITIONER:

NARINDERJIT SINGH SAHNI AND ANR.

RESPONDENT:

UNION OF INDIA AND ORS.

DATE OF JUDGMENT: 12/10/2001

BENCH:

G.B. PATTANAIK & UMESH C. BANERJEE & S.N. VARIAVA

JUDGMENT:

JUDGMENT

2001 Supp(4) SCR 114

The Judgment of the Court was delivered by

BANERJEE, J. This batch of writ petitions under Article 32 of the

Constitution by reason of supposed infraction of Article 21, were moved

before this Court for the grant of an order for bail in the nature as

prescribed under Section 438 Cr. P. Code, and in line with the orders dated

28.3.2000 in W.P. (Crl.) No. 256 of 1999 and dated 5.5.2000 in W.P. (Crl.)

Nos. 72-75 of 2000 passed earlier by this Court. To crystalize the issue,

the orders as passed earlier ought to be noticed at this juncture. The

first of the two orders read as below : (JVG Group of Companies : Writ

Petition (Crl.) No. 256 of 1999)

"It is not possible for us to order that all his cases pending in different

States should be consolidated into one and brought before one court. That

would impose unwarranted and unnecessary hardships on the witness and

investigating agency spread over to those different States. Nor are we

inclined to order the Central Bureau of Investigation to take up the

investigation in respect of all cases, and further that he would make

himself available on any date when his presence is imperatively needed in

that court.

3. We permit the petitioner to move the appropriate High Courts for

bringing all the cases pending in different courts within the territorial

jurisdiction of that High Court to one single court or more than one court

(depending upon the number of cases or the width of the area of the State

is concerned).

4. This order will come into effect only if the petitioner would surrender

his passport in this court. Shri Shanti Bhushan, learned senior counsel

expressed a doubt that petitioner would have already surrendered his

passport before another court pursuant to the order passed. In that case he

can satisfy the Registrar General of this Court by an affidavit of the

situation and the Registrar General can intimate the jail authorities

concerned of that position.

5. We make it clear that it is open to the investigating agency in any

case to move for cancellation of bail if any such investigating agency

finds that petitioner is misusing the liberty granted by this order.

In view of the above order we direct the jail authorities of the jail in

which he is presently kept to release him forthwith on Registrar General of

this Court intimating the jail authorities regarding the surrender of his

passport as indicated above.

It is needless to say that this order will not be treated as a precedent

and is passed only on the peculiar facts and circumstances of this case.

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The Writ Petition is disposed of accordingly."

This Court also on a petition under Article 32 of the Constitution in Kuber

Group of Companies (Writ Petition Nos. 72-75 of 2000 being the 2nd order as

noticed hereinbefore) also passed a similar order to the following effect:

"1. If the petitioner is arrested in connection with any criminal case in

his capacity as managing director/director of JVG Group of companies the

arresting officer shall release him on bail on his executing a bond to the

satisfaction of the arresting officer.

2. Such relief shall be made after getting an assurance from him that

he will be present in the court concerned on the days when his case is

posted. However, we make it clear that it is open to the petitioner to

apply to the court concerned for exempting him from personal appearance on

condition that a counsel on his behalf would be present on such posting

dates and he would not dispute his identity as the particular accused in

that case, and further that he would make himself available on any date

when his presence is imperatively/needed in that court.

3. We permit the petitioner to move the appropriate High Courts for

bringing all the cases pending in different courts within the territorial

jurisdiction of that High Court to one single court or more than one court

(depending upon the number of cases or the width of the area of the State

is concerned).

4. This order will come into effect only if the petitioner would

surrender his passport in this Court. Shri Shanti Bhushan, learned senior

counsel expressed a doubt that petitioner would have already surrendered

his passport before another court pursuant to the order passed. In that

case he can satisfy the Registrar General of this court by an affidavit of

the situation and the Registrar General can intimate the jail authorities

concerned of that position.

5. We make it clear that it is open to the investigating agency in any

case to move for cancellation of bail if any such investigating agency find

that petitioner is misusing the liberty granted by this order.

AND THIS COURT has further ordered to the jail authorities of the jail in

which petitioner/detenues P.K. Sharma S/o. Deep Chand Sharma (In Judicial

Custody since 4.6.1999), Mrs. Roweena Sharma W/o. P.K. Sharma (In Judicial

custody since 17.7.1999) and M.M. Sharma, S/o. Deep Chand Sharma (In

judicial custody since 6.7.1999) confined in Central Jail No. 1, Tihar

Jail, New Delhi, to release them forthwith as the condition of surrender of

passports have been fulfilled to the satisfaction of learned Registrar

General of the Hon'ble court who has perused the affidavit in this Registry

to the above effect. AND THIS COURT has also observed that his order will

not be treated as precedent and is passed only on the peculiar facts and

circumstances of this case.

AND THIS COURT DOTH FURTHER ORDER THAT THIS ORDER be punctually observed

and carried into execution by all concerned."

To put the records straight and complete, be it noted however that these

matters were placed before this Court for similar orders, but since the

Division Bench of two Hon'ble Judges of this Court delving into the matter,

felt some difficulty to lend concurrence to the orders as above, the Bench

referred the matter to the learned Chief Justice for constitution of a

larger Bench and in terms therewith, this Bench stands constituted for

disposal of this batch of petitions under Article 32 of the Constitution.

Incidentally, several writ petitions have been filed invoking jurisdiction

under Article 32 of the Constitution of India by reason of supposed

infraction of Article 21 with several identical prayers - the main being

grant of a writ of mandamus or any other appropriate writ in the nature of

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an order under Section 438 of the Code of Criminal Procedure, directing

that in the event the petitioner is arrested in connection with any

criminal case, the arresting officer shall release him on bail on his

execution a bond to the satisfaction of the arresting officer. As regards

the other prayers, we shall defer it presently since the cardinal issue

relates to the first prayer. As noticed above, supposed infraction of

Article 21 was taken recourse to substantiate the invocation of Article

.32.

Needless to record that Article 21 of the Constitution postulates that no

person shall be deprived of his personal liberty except according to the

procedure established by law. The expression 'personal liberty'; admittedly

is of widest possible amplitude and cannot in any way whatsoever be, curbed

or restricted without offending the constitutional mandate. The decision of

this Court in Unni Krishna' case (Unni Krishnan, J.P. & Ors. v. Stale of

Andhra Pradesh and Ors., [1993] 1 SCC 645) lends concurrence to the

observations as above.

We are not called upon to deal with the true scope or the total ambit of

Article 21: The petitioners have taken recourse to the Article stating

therein that in the event they are not granted any relief as prayed for,

the petitioners resultantly would suffer the consequences which stand

negated by the constitutional mandate.

The relief spoken of however pertains to Section 438 of Criminal Procedure

Code. It is noteworthy that the 41st report of the Law Commission

recommended for the first time inclusion of a provision of what is called

anticipatory bail (vide Section 438 Cr. P.C.). Section 438 contemplates an

application by a person on an apprehension of arrest in regard to the

commission of a non-bailable offence: the object being to relieve a person

from unnecessary harassment or disgrace and it is granted when the Court is

otherwise convined that there is no likehood of misuser of the liberty

granted since he would neither abscond nor take such step so as avoid due

process of law.

In Gurbaksh Singh Sibbia etc. v. State of Punjab, AIR (1980) SC 1632, the

Constitution bench of this Court very succinctly laid down the difference

between right of an individual to his liberty and the right of the Police

to investigate into crimes. This Court in paragraph 37 observed that a

blanket order of anticipatory bail may cause some interference in the

matter of investigation. This Court observed :

"...A Blanket order of anticipatory bail is bound to cause serious

interference with both the right and the duty of the police in the matter

of investigation because, regardless of what kind of offence is alleged to

have been committed by the applicant and when, an order of bail which

comprehends allegedly unlawful activity of any description whatsoever, will

prevent the police from arresting the applicant even if he commits, say, a

murder in the presence of the public. Such an order can then become a

charter of lawlessness and a weapon to stiffle prompt investigation into

offences which could not possibly be predicated when the order was passed.

Therefore, the court which grants anticipatory bail must take care to

specify the offence or offences in respect of which alone the order will be

effective. The power should not be exercised in a vacuum."

Having however, discussed the outlying features of the grant of

anticipatory bail and upon due consideration of the caution exercised by

this Court in Gurbaksh Singh (supra), let us advert to the factual score

presently before this Court. The petitioners charged with offences under

different provisions of law, are admittedly in custody: no complaint or

grievance can be made against the issuance of charge-sheet by reason of the

contextual facts of the writ petition. Facts relating to the charge-sheet

as high lighted by both the parties during the course of hearing would be

adverted to shortly, suffice however to record that the liability shall

have to be adjudicated: The petitioner's culpability in the offence if any,

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shall have to be deciphered and if this be' the foundation of launching of

prosecution, the issue then as contended arises, viz., where is the scope

of invoking Article 21 of the Constitution - Has the Article been

incorporated in the Constitution to safeguard the offenders? These are few

of the issues raised by the learned Additional Solicitor General, Mr.

Rawal, appearing for the Union of India. The answer obviously cannot be in

the affirmative provided however, there is due sanction of law in the

matter of having the petitioners in the custody, but only upon scrutiny of

facts. True, Section 438 stands included in the Code, but its applicability

would be rather in rarity than generality.

It is at this juncture we feel it inclined to take recourse to a short

tabular format (in W.P. (Crl.) Nos. 245-246 of 2000) depicting the factual

score, rather than a longish narration form for appreciating the

contentions advanced in the matter under consideration. The petition herein

is involved as principal accused person in:

(1) (FIR No.) (2) Charge under Section (3) Police Station

1006/98 U/s 420 IPC PS Tilak Nagar

149/98 U/s 420/406/409/120 IPC PS Prasad Nagar

257/98 U/s 420/406/409/120 IPC PS Karol Bagh

264/98 U/s 420/406/409/120 IPC PS Prasad Nagar

209/98 U/s 420/406/1 20B IPC PS K. Gate

407/98 U/s 420/406/409/1 20B IPC PS K. Gate

355/99 U/s 420/406/409/1 20B IPC PS K. Gate

16/2000 U/s 420/406/409/1 20B IPC PS K. Gate

Apart from the above, there are 142 other complaints against the petitioner

filed under section 138 of the Negotiable Instruments Act with regard to

which production warrants have been served in Tihar Jail. (Emphasised to

high-light the same)

There are further 10 FIRs pending investigation in Dehradun: Four matters

are pending before the Consumer Forum at Delhi and 9 others just outside

the Delhi Area: Apart therefrom complaint cases are pending in Aligarh,

Mainpuri, Bulandsahar, Alwar, Bharatpur, Jaipur, Ludhiana, Gurgaon, Naham

Dist. (H.P.) Dibrugarh (Assam), Faridabad, Jagadhari, Palwal. Besides

however the FIRs mentioned above in Dehradun, there are 40 other complaints

in Dehradun under section 138 of the Negotiable Instruments Act. There are

also innumerable production warrants that have been served on the supdt.

Tihar Jail, mainly under Section 138 of the Negotiable Instruments act.

However, it is stated that the petitioner being in custody, has not been

able to secure any information about the nature of cases and is totally

dependent upon the authorities to produce him or not to produce him before

a particular court. But why these proceedings? The answer however is not

very far to seek. It appears that the Petitioner No. 1 happens to be the

Managing Director of M/s. Okara Agro Group of Companies. The records depict

that the petitioner No. 2 Okara Agro Industries Ltd., commenced its

business w.e.f. 7.5.1993 upon incorporation under the provisions of

Companies Act 1956. The records further depict that on 18th Dec., 1997 the

Securities & Exchange Board of India (SEBl) issued a notice in the daily

newspaper stating that the Central Government has decided an appropriate

regulatory framework for regulating the entities issuing instruments such

as Agro bonds, plantation bonds etc. The notice also prohibited investment

scheme including mutual funds from sponsoring schemes till the regulations

are notified by SEBI. It was provided further that till the regulations are

notified, all collective schemes which were operating should continue with

their operation till the regulations are notified.

On 25.3.1998, a FIR bearing No. 149/98 was registered at P.S. Prasad Nagar

under sections 420/406/409/120-B IPC against the company and its directors

for accepting deposits from large number of people in different schemes and

for failure to make repayment inspite of requests - charge-sheet was

subsequently filed by the Crime Branch of Delhi Police in the Court of

Metropolitan Magistrate, Tis Hazari. Subsequently, on 28.4.98 a FIR being

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No. 264/98 was registered at P.S. Prasad Nagar on the complaint of one Om

Prakash Mishra against the petitioner alleging that the latter had

defrauded and cheated him and other members of his family in accepting

money in various schemes of the company and when the complainant asked for

the money, the post-dated cheques issued by the company were dishonoured

since accounts were closed. It is in regard to the FIR 264/98 as noticed

above that the petitioner No. 1 was arrested by the Crime Branch of Delhi

Police on 29.6.1998.

The factual context further depict that in September, 1998, a Public

Interest Litigation being No. CWP No. 3352 of 1998 (S.D. Bhattacharya &

Ors. v. SEBI & Ors.) was filed in the Delhi High Court against 700

planation companies wherein the petitioner was added as party respondent as

Respondent No. 8. In the Writ Petition the High Court however, passed an

order on 7.10.1989 restraining the respondent companies from selling and

disposing of or alienating their immovable properties and the same was also

made applicable to the directors as well. The records depict that the

petitioner on 19.12.98 was granted interim bail by the Additional Sessions

Judge but the same stands stayed by the order of Delhi High Court dated 8th

March, 1999.

The High Court however, on 26th May, 1999 during the course of hearing of

Criminal Misc. Petition No. 4730 of 1998 stated that the bail to the

petitioner could only be granted if sufficient money could be made

available for the purposes of making repayments to the investors and in

that context directed the petitioner to file a scheme for payment or

proposal for payment and it is in that perspective that on 7th October,

1999, the petitioners moved Misc. Application seeking permission to sell

certain properties of the petitioner to repay the amount to the investors.

The Delhi High Court, however subsequently while disposing of the Crl.

Miscellaneous Application directed the Commissioner of Police to hand over

the investigation to a very senior police officer assisted by a team of

sufficiently large number of investigating officers to ensure the

conclusion of the investigation within 4 months. The Crime Branch was also

directed to file the list of 71 properties including the properties of

sister concerns and the financial stability and the liquid assets of the

company in the form of a report to the High Court within 6 weeks : Factual

score thus very candidly exposed the popular English saying-ingenious are

the ways, where the genius works!

It is on these set of facts that Mr. Tulsi, the learned senior Advocate

appearing in support of some of these writ petitions contended that this

long incarceration of the petitioners in jail cannot but be ascribed to be

a situation which runs counter to the mandate of the Constitution under

Article 21. Mr. Tulsi contended that the petitioner No. 1 being the

Managing Director of M/s. Okara Group of Companies is sought to be charged

under Section 420 IPC with the aid of Section 120B without there being any

material to indicate that the petitioner had either the knowledge or the

intention to assit the other accused in commission of the offence. In any

event, it is submitted that the offence of conspiracy being in the nature

of a continuing offence, its inclusion would be sufficient to establish the

connection of one offence with the other for the purpose of converting all

the offences into a single offence or in the alternative, into the kind of

offence which could only have been committed in the course of the same

transaction, within the meaning of section 220 of the Code of Criminal

Procedure - Admittedly a submission of some effect and this is so

irrespective of the factum of about 250 number of FIRs lodged throughout

the country. We are however not making any observation in regard thereto

presently. Incidentally, Mr. Shanti Bhushan appearing in support of some of

the other petitions also contended more or less in the similar vein as

regards the issue of single offence and we do deem it expedient to deal

with the same at a stage later in the judgment since we do deem it fit to

note some preliminary submissions, which are of some consequences as

advanced by the Respondents at this juncture.

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Mr. D.N. Goburdhan, learned Advocate, appearing for the Investors' Forum,

attributed the writ petition as a classic case of abuse of the process of

law, since there is neither any violation of guaranteed right under Part

III of the Constitution nor a relief under Section 438 Cr.P.C. can however

be termed to be a guaranteed right. The writ petitioners' conduct as a

matter of fact, it has been contended, disentitles him for any

discretionary relief from the Court. Mr. Goburdhan with his usual felicity

of expression was rather emphatic in contending that petition for bail

under Sections 437 and 439 Cr.P.C. has been converted into a petition under

Article 32. It has been contended that the petitioners' bail was rejected

by the Magistrate's Court and the interim bail for 90 days granted by the

learned Sessions Judge was also challenged in the High Court by the

investors' forum and the same stands suspended - Secondly Mr. Goburdhan

contended that whilst the petition is pending before the High Court this

writ petition was filed. According to Mr. Goburdhan that the writ

petitioner in connivance with his family who all were Directors of the

company have totally siphoned off the monies collected from the public. The

intention to cheat and the actus rea of cheating is complete in all force.

All other Directors who are family members are absconding and have been

declared as proclaimed offenders by the Court.

In any event, Mr. Goburdhan contended that Articles 21 and 438 Cr.P.C. are

not only mutually inconsistent with each other but cannot go hand in hand

with each other and the methodology adopted in the garb of a petition under

Article 32 for infraction of Article 21, cannot but be a handy work and

ingenuity of the writ petitioners. The amount of money siphoned off from

out of the deposits of the public in general by the petitioners docs not

permit the Court under Article 32 or under any other provision to grant any

relief to the petitioners herein.

Mr. Rawal, the learned Additional Solicitor General opened up a new vesta

in the matter and submitted that in an application for anticipatory bail

the gravity of the offences involved ought to be the prime consideration

since thousands of investors have lost their lives' savings, after being

duped by the petitioners - It is an "economic murder" of an entire

community of people and thus has necessarily to be dealt with utmost

severity. The two earlier judgments of this Court spoken about cannot be

the guiding feature, since the same were pronounced in the facts and

circumstances of each case: Secondly in both the decisions this Court was

cautious enough to record that the same would not be treated as a judicial

precedent in any way whatsoever and in view of such express recording,

question of the same or a similar order being passed in any other matter

would not arise. Mr. Rawal contended that the gravity of massive economic

genocide cannot be belittled by terming it as a major offence of cheating

or depriving someone of his property. The victim is deprived of his

economic life. The crime is no less heinous than putting an end to the life

of a person. A large number of suicides which follow such white collared

crime is indicative of the magnitude of the crime involved. Therefore, the

fact that a maximum punishment of 7 years is prescribed for a single

offence of cheating cannot be pressed into service by the petitioners for

seeking relief. The activities of the concerned economic offenders are as a

matter of fact spreading in several States. Very often after starting their

operations in one State and by luring investors of high returns, to finance

those returns fresh funds are raised in some other State. To pay the

promised high returns in the second State, funds are raised in a third

State and so the channel continues. Each act of cheating, therefore,

constitutes a separate offence and the attempt to say that it is only one

advertisement which results in to multitude of consequential deprivation of

property is an endeavour to mis-lead this Court. Without however,

expressing any opinion in the matter presently, neither we should also, but

the eloquence of Mr. Rawal seems to be of unmatched quality both as regards

the legal issues as also on the factual context.

As regards the issue of maintainability of the writ petition under Article

32 of the Constitution by reason of infraction of Article 21, it has been

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the contention of Mr. Rawal that there has been no violation of procedure

established by law and thus taking recourse to the remedy of institution of

the present writ petition on this score is wholly purposive and with motive

not far to seek. Article 21 prohibits denial of liberty except according to

the procedure established by law - in the contextual facts Mr. Rawal

submitted that there is no denial of liberty except in accordance with the

due process of law and infringement of Article 21 as has been drawn, is a

myth and ought not to be countenanced by this Court in entertaining the

petition under Article 32.

Undoubtedly a situation which requires utmost consideration of this Court :

On the one hand the constitutional mandate under Article 21 and its broad

and lofty ideals involved therein and on the other to quote Mr. Rawal's

language, there is existing an economic genocide - not only an issue

interesting but its importance in the jurisprudence of the country cannot

be lost sight of.

Before, however, we are caught on to the details of the white-collared

crime and its effect on the society, we deem it expedient to advert to the

more or less similar fact-situations of other six matters placed before

this Bench.

Re: Writ Petition No. 249 of 2000

In the earlier writ petition Nos. 245-246 of 2000, we thought it expedient

to take recourse to a tabulated format and thus avoided a other dull

longish narration, but in the instant matter we do not think it proper to

cut short the longish narration since we have already on record a version

of the petitioner B.B. Sharma herein support of the writ petition as

emphasised by Mr. Shanti Bhushan, the learned Senior Advocate in support of

the petition and the other version available on record through the

affidavit of one Raghuvir Singh and other notings available on record - the

facts are rather interesting as also revealing and in that perspective the

same shall have to be considered vis-avis the present petitions under

Article 32: Needless to record that main trial is yet to commence and as

such our endeavour should and ought always be not to prejudice the trial in

any way whatsoever. While it is true that detailed submissions have been

made by both the petitioners as also the respondents, but we will in this

judgment deal with only the basic facts as is required presently and that

too without expression of any opinion thereon.

The instant petition under Article 32 has been at the instance of Shri B.B.

Sharma who happened to be the Chairman and Managing Director of Hoffland

group of Companies. The latter has been engaged in accepting deposits and

giving loans to public. The petitioner as appears has promoted 40 firms

companies having 50 branches all over the country. Till 1997 the petitioner

company said to have made payment with interest on maturity but thereafter

the company suffered huge losses because of downtrend in the business of

financial - service companies and added together is the termination of

registration as financial managers by SEB1 - the problem according to the

petitioner has been by reason of subsequent closure of company's A/cs by

main banker viz., Oriental Bank of Commerce and post dated cheques of the

Company where returned unpaid and resultantly several FIRs were lodged. In

January, 1998 on the factual score, it appears that petitioner was arrested

but subsequently released on bail in the month of February itself. Diverse

criminal proceedings have started against the petitioner and the petitioner

was behind the bars several times though the petitioner was granted bail in

some FIRs in Delhi and also at Mumbai, Pune, Chandigarh, Udaipur, Gurgaon,

Ghaziabad, Ludhiana, Dehradun and Ambala but could not avail such privilege

to be released on bail as he was in judicial custody in similar FIRs by

other depositors. The principal grievance of the petitioner being that

though in judicial custody for the last 21 months but the petitioner can

never be released as the situation presently stands by reason of several

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production warrants pending in different States like Uttar Pradesh,

Rajasthan, Kerala, Punjab and Karnataka. It is petitioners definite case

that imperative is the question of release as then only he can look after

the interest of investor by evolving a scheme of revival. The petitioner as

a matter of fact, it has been contended, has to be shuttled from one place

to another all over the country as presence of the petitioner suddenly

becomes mandatory at every other place and on every date of hearing. It is

this state of affairs which Mr. Shanti Bhushan appearing in support of the

petitioner highlighted and contended that the same is unjust and violative

of the fundamental rights under Article 21 of the Constitution. It has been

contended in support of the petition that all these cases initiated against

the petitioner are basically under Section 420 read with Section 120 B of

the IPC and such question is whether there are numerous cases of cheating

or there is only one offence and one case and it is in this context

reliance was placed upon Section s 2, 9, 34, 36 and 40 of the Indian Penal

Code and it was contended that an offence denotes a thing made punishable

by the Indian Penal Code and that an act or omission would constitute an

offence. In was emphasized that the singular includes plural and vice versa

and the language of Section 415 IPC was taken recourse to since the Section

provides whoever deceives or induces a person to do or omit to do anything

commits an offence. It was submitted that many persons may have been

induced but since the act of deception was one and the act of deception

being issuance of advertisement by the petitioner and his group of

companies and there is only one act of deception even if several persons

stand cheated. Diverse other provisions of the Cr. P. Code were referred to

and we shall presently deal with the same but before adverting thereto, the

facts as submitted by the Investors' Association represented by Mr.

Goburdhan as regards the issue of exercise of jurisdiction by this court

Article 32 of the Constitution ought to be noticed at this juncture. Mr.

Goburdhan contended that the present petitioner is a habitual criminal

offender and is repeatedly changing his name after committing offences and

after getting bail, unlike the other writ petitioners. Significantly, the

present petitioner is also having a criminal background. His original name

is B.B. Rai, and was working as Branch Manager with the Syndicate Bank,

Bisawar (Distt. Mathura, U.P.) wherein in the year 1986, he had made an

embezzlement of Rs. 20 lacs approximately. After making the said

embezzlement he was taken into custody and was dismissed from the services

and Sh. H.C. Bisht, Dy. S.P., CBI SPE Dehradun, had conducted the enquiry

in regard to the said embezzlement, as the investigating officer and filed

two FIRs being nos. RC-1/1987 & RC-2/1987 and the said cases are pending in

the court of Special Judge Anti-Corruption, Dehradun.

Significantly, the FIRs, spoken of the RC-1/1987 is available on record and

for convenience sake, the same reads as below:

"Delhi Special Police Establishment, Dehradun Branch

First Information Report (Recorded u/s 154 Cr.P.C.)

Crime No. RC-1/87

Place of occurrence with State Date and Time of occurrence

Name of Complainant or Informant with address

Offence

Name and address of the Accused

1.

Date and time of Report 5.1.87 16.30 Hrs.

Bisavar, Distt. Mathura, (UP)

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During 1986

Source

120-B, 420IPC and 5(2) r/w

5(1 )(d) of Prevention of Corruption

Act (Act-II of 1947)

Sh. B.B. Rai, Branch Manager Syndicate Bank, Bisavar, Distt. Mathura (Group

B)

2. (Unknown persons)..........................

3..........................................................

Action taken Investigating Officer

RC Registered.

Sh. H.C. Bisht, Dy. S.P. CBISPE Dehradun

Information

Information has been received that during the year 1986, Sh. B.B. Rai while

posted and functioning as Branch Manager, Syndicate Bank, Bisavar Distt.

Mathura entered into a criminal conspiracy with some unknown persons with

the object to cheat the Syndicate Bank. In Pursuance of the said criminal

conspiracy a Current Account No. 133 in the fake name of Sh. S.K. Verma was

got opened at the said bank on 5.6.86. Various clean over-drafts were

allowed by Sh. B.B. Rai,in this account on 7.6.86, 14.6.86, 17.6.86 and

21.6.86, thus there was a debit balance of Rs. 2,36,884 in this account on

8.7.86 when a cheque pertaining to Sh. Madan Lal having a Saving Bank

Account with Oriental Bank of Commerce, Shahdara, Delhi amounting to Rs.

2,80,000 was purchased/discounted in the said bank at Bisavar and its

proceeds were credited to the fake current account of Sh. S.K. Verma and on

this basis Sh B.B. Rai caused the closure of the said fake account.

Actually in the absence of proper balances in the said account, the cheque

mentioned above was returned unpaid. The whole amount is since

outstanding.

Thus Sh. B.B. Rai by corrupt or illegal means or by otherwise abusing his

position as a public servant in conspiracy with others caused heavy

pecuniary loss to the bank and corresponding pecuniary advantage to himself

or others. These facts constitute offences punishable u/s 120-B, 420 IPC

and Sec. 5(2) r/w Sec. 5(d) of the Prevention of Corruption Act.

A regular case is, therefore, registered and Sh. H.C. Bisht, Dy. S.P. is

deputed to investigate it.

Supdt. of Police CBI Spe Dehradun"

Whereas the period of offence pertaining to crime RC-1/87 as noticed in the

FIR appears to be between 5th January. 1986 to 21st January, 1986 and the

period covered under RC-2/1987 stands between 8th July, 1986 to 13th

September, 1986 wherein the Syndicate Bank has had to suffer a financial

loss to the extent of approximately Rs. 20 lacs as the records depict.

It is after the above noted episode of the Bank and upon getting the bail,

the petitioner is said to have absconded from the jurisdiction of the court

and came to Delhi with a new name as B.B. Sharma and opened up Hoffland

group of Companies and Mr. Goburdhan has been very emphatic that all the

family members of the petitioner are absconding and the address given in

the petition is also fake since nobody is living in the address noted. It

has been further contended that the petitioner has not been able to obtain

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bail from any court except in 3 cases - one in the case of Gurgaon, Haryana

due to non filing of challan under Section 167 Cr.P.C.: Another in the case

of Ghaziabad wherein the agent has made a complaint and in the third case

he was given bail from the High Court of Delhi by reason of wrong facts

though however an appeal is pending in the said matter in the High Court

itself. Significantly, Mr. Goburdhan further contended that the petitioner

alias B.B. Rai after getting bail from the Additional Sessions Judge,

Ghaziabad absconded from the jurisdiction of the said court and went to

Varanasi. It has been stated that the petitioner this time changed his name

to one Mr. B.B. Badal and lived in Surya Hotel from where however he was

arrested on 20th August, 1998 with the help of one depositor viz., Mr.

Raghubir Singh. Mr. Raghubir Singh's affidavit is annexed in the papers

filed before this Court, the extracts of which are set out hereinbelow :

"1. That I accompanied the Delhi Police team which went to Varanasi to

arrest the petitioner alias B.B. Rai who was staying in 'Surya Hotel' by

changing his name as "B.B. Badal".

2. That I have identified the Petitioner on 20.9.1998 in the said Hotel. I

was accompanied by the officials of the team of 'Crime Branch -Delhi

Police' headed by Shri Shyam Singh, the then Asstt. Commissioner of Police,

Economic Offences Wing Crime Branch, Delhi.

4. That I am one of the thousands of gullible investors and have lost my

hard earned retirement benefits to tune 3,20,000 (Rupees Three lacs twenty

thousand only) in the Hoffland Group and a such am well conversant with the

facts and circumstances of the case and hence competent to swear this

affidavit.

5. That I have lodged FIR No. 340/1998 with Prasad Nagar Police Station

and the trial in the said case is about to be completed in the Court of Tej

Singh Kashyap the Learned Add). Chief Metropolitan Magistrate, Tis Hazari

Courts, Delhi."

The submission of Mr. Shanti Bhushan pertaining to the charges in the

matters relate to Section 420 only - there seems however to be some amount

of confusion by reason of the factum of initiation of a proceeding under

Section 409 IPC in various cases in the court of New Delhi. The charge of

Section 409 appears to have been framed by the learned Addl. Chief

Metropolitan Magistrate, Delhi together with Sections 420 and 120-B of the

IPC by an order dated 5th May, 2001.

Another redeeming feature as contended by Mr. Goburdhan was that the

petitioner has had no intention to honour the commitment which he has

undertaken to different agencies. The Company Law Board passed an order on

21st October, 1998 as regards the scheme for repayment but the petitioner

herein thought it fit not to comply with the same, question of the

petitioner being in jail or outside the bar can be of no consequences as

regards the desire to make the payment. A scheme for repayment of the

investors' money was made available to the Company Law Board and the order

was passed also therein on the basis of such assurance which stands in non

compliance rather than compliance. Incidentally, the submission of Mr.

Shanti Bhushan that compliance of scheme cannot be had by reason of the

petitioner being in the jail but the factum of payment of a sum of Rs. 2

lacs in the court of Metropolitan Magistrate Delhi through one of his

nominee to a depositor viz., Major Gen. Ranjit Singh (Retd.) could easily

be had, as such the plea of being behind the bars was not a factor to be

reckoned with. Mr. Goburdhan further pointed out that question of clubbing

of offence or consolidation of cases in a single court is not feasible and

as such, this Court will be pleased not to pass such order as regards one

charge and one offence. It has been contended by both the learned

Additional Solicitor General appearing for the State and Mr. Goburdhan that

the question of one offence and one charge does not and cannot arise. The

representations were totally different in different States and people were

cheated by adoptation of a different methodology in different States of the

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country, as such, question of the same being treated as one charge or one

offence would not arise. This is apart from the factum, it has been

contended, that there are charges under Section 409 IPC which cannot thus

be ignored.

Investors' Forum have been rather vocal in the matter of even entertaining

petition under Article 32 as regards the writ petition herein and Mr.

Goburdhan contended that the writ jurisdiction of this court ought not to

be meant to be that easily available to a person of such a heinous

character for the reasons noticed above neither any bail or in the nature

of anticipatory bail can or could be granted to the petitioner herein. The

provision of bail, it has been contended has been engrafted in the statute

book and specific provisions are available to the petitioner if he is

otherwise entitled to and selection of this Court for projection of the so-

called plight of the petitioner was utterly motivated, and invocation of

Article 21 is wholly wrong and in any event an offender of the nature of

the petitioner herein cannot invoke such a plea as under Article 21. The

heinous nature of crime committed by the petitioner as it has been

submitted does not warrant this Court to exercise the jurisdiction under

Article 32 by reason of the so-called infraction of Article 21 of the

Constitution. The petitioner richly deserves the treatment meted out and no

credence ought to be placed on the submission of Mr. Shanti Bhushan since

his client does not deserve any sympathy from any quarters far less the

Apex Court of the Country.

It is at this juncture the other writ petitions as filed before this Court

and included in this batch of petitions ought to be noticed.

(I) Writ Petition No. 405 of 2000

(M. Lal. v. Union of India & Ors.)

The petitioner herein has been an employee of Hoffland Finance Ltd. and

similar are the prayers in the writ petition to wit: consolidation of

proceedings and the grant of bail. The affidavit on behalf of Union of

India & Ors. undoubtedly impleads the petitioner herein in the matter of

perpetration of fraud and resultantly cheating the public to the tune of

about 100 crores on the basis of false promises all over the country. An

FIR No. 155/98 under Sections 406, 420, 120-B IPC was registered and

investigation was taken up by the Crime Branch of Delhi Police. The details

of the alleged misdeeds of the present petitioner has been noticed

hereinbefore in the matter of Chairman-cum-Managing Director more fully and

as such we need not dilate thereon excepting recording the submission of

Mr. Rawal that the involvement of Shri M. Lal in the entire conspiracy and

siphoning of large amount of public money from Hoffland Investment cannot

in any way be doubted. He has been a close associate of Shri B.B. Sharma,

and an instrument in the perpetration of fraud contended Mr. Rawal.

Significantly, the petitioner herein however did not feel shy to record

that Shri B.B. Sharma has been bailed out in most of the cases, the

affidavit of the Union of India however records a contra state. For

convenience sake, paragraph 7 (XXI) is set out herein below :

(xxi) That is incorrect to state that B.B. Sharma the Chairman cum Managing

Director of Hoffland Group of Companies has been bailed out in most of the

cases. That the fact is that Shri B.B. Sharma was granted bail only in one

matter case FIR No. 113/ 98 by the Hon'ble High Court of Delhi due to

misrepresentation of the facts and the state has gone in appeal against it

in the Hon'ble High Court Delhi which is pending before the Hon'ble High

Court and the next date is fixed for 16.1.2001. S/Sh. Kishan Chand

Aggarwal, K.S. Kardam and D.B. Sharma have been granted bail by the Hon'ble

High Court of Delhi because of their individual special circumstances like

ill health etc. And the same can not be invoked as a general precedent as

has been rightly ruled by the Hon'ble High Court while refusing bail to the

accused petitioner vide order dated 31.1.2000.

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The State of Rajasthan being a party in the proceeding has also filed an

affidavit but has recorded its inability to deal with the allegations in a

manner effective since no details have been furnished. We do feel it

expedient to record our concurrence therewith as more fully detailed herein

below in this judgment.

2. Writ Petition (Crl.) No. 270 of 2000

(Sufyan Ahmad v. Union of India & On.)

The petitioner herein claims some amount of indulgence being an engineering

student at the undergraduate level. The petitioner claims that being the

real brother of Shri Jawad Ahmad Siddiqui the Chairman of Al Falah Group of

Companies, he was made a Dormant Director in one of the Companies of the

Group and his name has been wrongly included in the list of offenders of

any fraud perpetrated by the Company. It has been the contention of the

petitioner that he is in judicial custody since 29th January, 2000 and as

such invoked jurisdiction of this Court under Article 32 for violation of

his liberty as guaranteed under Article 21 of the Constitution. A contra

affidavit filed however depicts a contra picture and in terms of the

affidavit of Deputy Commissioner of Police Headquarter, Delhi, there are

more than 250 complaints alleging mis-appropriation of an amount of more

than Rs. 7 crores. While making no comments on the plea of the petitioner's

as regards his status as a student but the affidavit is rather candid in

recording that sufficient evidence is available that the petitioner was a

full fledged Director of M/s. Al Falah Finlease Limited and was actively

associated with its functioning right from the very beginning. As a matter

of fact, the inducement to invest was effected by the petitioner only in

different parts of the country and money siphoned off from the Accounts of

the Company to his Personal Account. As as matter of fact, the petitioner

was arrested in FIR No. 43/2000 under Sections 406, 420, 409, 468, 471 and

120-B IPC and it is on this score Mr. Rawal contended that question of non-

involvement of the petitioner does not arise and seeking of sympathy of

court by reason of his age and status as a student runs contra to the

factual state and thus totally unwarranted. The First Information Report

against petitioner being No. 43/2000 however, lends concurrence to the

submissions of Mr. Rawal. The State of U.P. in more or less in similar vein

contended that question of drawing sympathy as a student does not and

cannot arise so far as the petitioner is concerned.

Incidentally, in this Writ Petition, there is an application for

impleadment by reason of failure to pay on the part of the Company and its

Directors. We do not see any reason however to implead the applicant herein

at this stage of the proceeding, as such we pass no order on the

impleadment application being Crl. Misc. Petition No. 2618 of 2001 in Writ

Petition (Crl.) No. 270 of 2000.

3. Writ Petition (Crl.) No. 433-435 of 2000

(Jawad Ahmad Siddiqui & Ors. v. Union of India & Ors,)

The factual situation are more or less the same as that of Sufyan Ahmad in

Writ Petition (Crl.) No. 270 of 2000 and hence we need not dilate on the

same. The prayers are also identical in nature. Incidentally, the High

Court of Delhi has appointed a Liquidator on 20th July, 2000 over the

assets of Al Falah Group of Companies. Be it further noted that the Company

has been a family concern and two of the Directors are absconding. The

Depositors' Forum of Al Falah Group of Companies also moved an application

for intervention, denouncing the effort to obtain the relief in the Writ

Petition filed under Article 32 for the supposed infraction of the rights

guaranteed under Article 21 of the Constitution. We however do not see any

reason to allow the Intervention Application at this stage of the

proceedings and as such we do not pass any order in Crl. M.P. No.

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1223-25/2001 in W.P. (Crl.) No. 433-435 of 2000.

4. Writ Petition (Crl.) No. 421 of 2000

(Shri M.N. Badam v. Union of India & Ors.)

The petitioner herein has been a Director of Hoffland Finance Ltd. and it

is stated that he was designated as one of the Directors purely looking

after the formalities and to co-ordinate the official work with the

Governmental agencies and as such was not involved with the day to day

affairs of the Company's management. Significantly however, the petitioner

retired as the Senior Superintendent of Police from the Intelligence Bureau

on 30.4.1991 and said to have been awarded various awards including the

Indian Police Medal in August, 1980. It has been the specific case of the

petitioner that at least 36 commendation certificates were awarded to the

petitioner and the petitioner was awarded some medals also in the war of

1971 with Pakistan. The principal submission on this factual score in

support of the petition has been after serving the country for more than 35

years and in order to get himself engaged joined the Hoffland Finance Ltd.

and he has been a victim of circumstances. The petitioner also prayed in

the similar vein for consolidation of proceedings and the grant of bail.

From the records however, it appears that there are altogether 31

proceedings against the petitioner herein including some under Sections

420, 406, 409, 120-B IPC and some under Section 138 of the Negotiable

Instrument Act and one case under the Gangster Act (490/1999 under Section

3(2): Kotwali Dehradun, U.P.). The Senior Superintendent of Police Shri

Kuldeep Singh in the counter affidavit on behalf of the Respondent No. 4

has stated that petitioner has been declared a proclaimed offender by the

trial court of Ludhiana and he is also wanted in case FIR No. 58 dated

3.3.1999 under Sections 420 and 120-B IPC. It has been the contention of

the respondent that the indulgence sought for by reason of the past records

in the Police force ought not to permit the court to pass any orders since

presently the petitioner cannot be termed to be a better substitute than

the worst offender.

5. Writ Petition (Crl.) No. 63-64 of 2001.

(P.C. Sharma & Anr. v. Union of India and Ors.)

The petitioner herein has been rather emphatic for enforcement of his

fundamental rights. On his own accord, several proceedings are pending in

the States of Rajasthan, Maharashtra, Delhi, Gujarat, Chandigarh, Madhya

Pradesh, Punjab, Haryana and U.P. The petitioner herein also relied upon

the two of the orders noticed above, passed by this Court and prayed in the

similar vein for consolidation of proceedings and a separate application

for the grant of anticipatory bail.

Incidentally, the records depict that in a proceeding under Sections 120-B,

420,409, 467,468 and 471 IPC, the petitioner herein moved an application

for bail before the Ist Additional Sessions Judge, Kanpur Nagar (Bail

Application No. 1928/1997 : P.C. Sharma v. State). The learned Sessions

Judge in his order dated 28th July, 1997 came to a definite conclusion that

a clear case of Sections 420, 468 and 471 has been made out so also the

case also under Section 409 IPC. The learned Sessions judge further

observed that "the conduct of the company shows that the accused be not

released on bail. He has not only influenced the I.O. when he was not in

jail but has compelled the complainant also for giving false affidavit.

Thus no case for bail is made out. The bail application, is, therefore,

rejected."

Subsequently, a Bail Petition was moved before the High Court at Allahabad

wherein by an order dated 14th August, 1997 the learned Single Judge of the

High Court was pleased to allow the Bail Application. In Criminal Misc.

Application No. 5717 of 1997, a learned judge of the. Allahabad High Court

allowed the application of the petitioner under Section 482 and thereby

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released the latter on bail. While passing the order as noted lastly, the

learned Judge observed: 'That an accused cannot be refused to be released

on bail on the ground of requisition issued by other Criminal court to

produce the accused particularly when the date for producing the accused

has already expired.

Significantly, an earlier Writ Petition filed before this Court in the name

of Ashima Finance & Investment Co. Ltd. & Anr. v. State of U.P. & Anr.

wherein this Court has been pleased to observe :

"Having heard learned counsel, we are satisfied that the second petitioner,

using as a shield the order dated 14th May, 1998, went into hiding to

escape the processes of the law. His writ petition under Article 32 is an

abuse of the process of this Court. Were it not for the possible delay to

the other matters in which the petitioners are involved. We would have

contemplated taking action against the second petitioner for contempt of

Court.

The writ petition is dismissed. Consequent upon its dismissal, all those

who have a claim against the petitioners shall be free to prosecute the

same under the law. The Learned ASG submits that the police of several

States have warrants of arrest against the second petitioner and that it

would be in the interests of justice that the CBI should be permitted to

retain him under arrest for 48 hours, to be handed over to such police

authority as may arrest him. We think this is appropriate to secure the

ends of justice in the circumstances and order accordingly. The CBI shall

release the second petitioner into the custody of such police authority as

he has a warrant for his arrest as soon as such arrest is made. If no

arrest is made within 48 hours, ending at 12 Noon on 25th November, 1998,

the second petitioner shall be released by the CBI.

W.P. (Crl.) Nos. 149-155/98, 124-131/98, 117-123/98

Having regard to the dismissal of W.P. (Crl.) No. 347-348/97, we are not

inclined to entertain these matters. The petitioners therein shall be free

to file the writ petitions in the High Courts concerned or pursue such

other remedies as may be available to them under the law.

Obviously the present petition under Article 32 shall have to be decided on

the basis of the facts situation of the matter in issue.

6. Writ Petition (Crl.) No. 57 of 2001

(C. Natesan v. Union of India & Ors.)

The petitioner was the Chairman and Managing Director of Anubhav

Plantations and Managing Partner of the partnership firm Anubhav Finance

and Investments. Anubhav Plantations has been the flagship company of the

Anubhav Group of Companies which consists of 9 other companies and

financial firms. Admittedly, these financial firms collected about 125

crores from 40000 investors throughout the country and by reason of non

payment to the depositors, the case of the petitioner and the reason

addressed is the depressed market and allied problems of the company and

the financial firms, petitioner's own showing depicts that there are about

254 partnership firms which form part of Anubhav Finance and Investments

and Anubhav Dhana Viruksha. The records depicts that the petitioner has

been granted bail in respect of cases pending at Chennai, Pune, Nagpur,

Ahmedabad, Rajkot, Baroda, Hyderabad, Vishakapatnam and Jabalpur but the

petitioner has not been able to avail all these bail orders and he is still

in judicial custody in respect of similar FIR registered elsewhere on

similar complaints of depositors. Petitioner further recites in the

Application for Bail being Crl. M.P. No. 1807 of 2001 in Writ Petition

(Crl.) No. 57 of 2001 the cases more or less identically situated and that

of Col. (Retd.) T.S. Bhan and V.K. Sharma as also the other two orders as

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noticed hereinbefore in detail in this judgment. In support of his

contention as in the case of other writ petitioners that by reason of the

continued detention, the petitioner's rights stand violated under Article

21 of the Constitution and hence the petition under Article 32. The counter

affidavits filed in the matter by the different States reveal that various

proceedings are pending in various courts under Sections 407, 409, 420 and

120-B IPC against the petitioner. The methodology adopted have been stated

in detail but we do not feel it expedient to record the same at this

juncture save and except recording that the same depicts rather a dismal

picture of the functioning of the petitioner herein. The records, as a

matter of fact, depict that both Anubhav Plantation and Anubhav Finance &

Investment firm have collected more than Rs. 400 crores from the investors

throughout the country and there are various production warrants from

various courts from U.P., Bihar Madhya Pradesh and other States, pending by

reason wherefor and as noticed herein before, the petitioner in spite of

obtaining the bail has not been able to utilise the bail order so obtained.

As a matter of fact, the petitioner has not been able to even specify the

number of complaints under Section 138 of the Negotiable Instrument Act.

The above noted are the writ petitions filed in this court invoking the

jurisdiction under Article 32 of the Constitution and this Bench is

confronted with the twin issues for consideration - of the two issues

mentioned, the 1st issue pertains to the Maintainability of the petition

under Article 32 and secondly, an order in the nature of an anticipatory

bail ought to be made available to the petitioners herein by reason of the

deprivation of the liberty without there being any sanction of law.

The incidental issue as regards the consolidation of proceeding though

raised certain eye-brows from the depositors but the same would be dealt

with later in this judgment. Presently however, turning on to the first of

the twin issues namely, maintainability of the petition, be it noticed that

any person complaining of infraction of any fundamental right guaranteed by

the Constitution is at liberty to move this Court but the rights that could

be invoked under Article 32 must ordinarily be the rights of the petitioner

himself who complains of the infraction of such right and approaches the

Court for relief and the proper subject for investigation would however be

as to the nature of the rights that is stated to have been infringed. This

Court in Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan & Ors.,

[1997] 11 SCC 121, reiterated the oft noted phraseology that judicial

review is a basic structure of the Constitution and every citizen has a

fundamental right to redress the perceived legal injury through judicial

process. This Court went on to record

: ".....the Constitutional Court, therefore, has a constitutional duty as

sentinal

on the qui vive to enforce the right of a citizen when he approaches the

court for perceived legal injury, provided he establishes that he has a

right to remedy....."

The Constitution Bench decision of this Court in D.A.V. College, Bhatinda,

etc. v. State of Punjab and Ors., [ 1971 ] 2 SCC 261, has the following to

state as regards the maintainability of the petition under 32 Article of

the Constitution.

".....a petition under Article 32 in which petitioners make out a prima

facie case that their fundamental right are either threatened or violated

will be entertained by this Court and that it is not necessary for any

person who considers himself to be aggrieved to wait till the actual threat

has taken place......."

Incidentally, the power of judicial review being implicit in written

Constitution, question of there being any fetter for such review would not

arise and specially in the 21st century there ought not to be thwarting of

such a right nor even any hesitancy in that regard. Be it noticed herein

that maintainability of the writ petition is an issue de hors the ultimate

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result in the petition - presently the justice oriented approach and set-up

a standard in accordance therewith ought to be the guiding factor so far as

the law courts are concerned. Refusal to entertain cannot be in tune with

the present approach and rather acts contra. The requirement is a prima

facie satisfaction on the basis of the available pleadings as to whether

the judicial review prayed for under Article 32 needs consideration, if it

does, there cannot be any doubt as regards its maintainability.

Let us, therefore, analyse the situation in totality and consider the plea

as emphasised by the petitioners herein. The records depict that thousands

of innocent persons have fallen a prey in the methodology of working of

finance companies and firms but does that mean and imply a denial of an

opportunity of being heard or considered - the answer however, cannot

possibly be in the affirmative. Doctrine of natural justice warrants a fair

opportunity - we do not wish even to adumbrate the issue of natural justice

here but the fact remains the writ petitioners herein have come up with a

petition on the ground that they have not been able to obtain benefit of

the justice delivery system, reasons of which need not be dealt with

presently but the factum of not being able to obtain the benefit and

thereby it has been alleged that Article 21 stands violated : In our view,

judicial review or in other words maintainability of the petition under

Article 32 cannot possibly be doubted in any way and as such we are unable

to record our concurrence with the submissions of the respondents in the

matter.

Let us however, try and analyse the grievance of the petitioners and

consider as to whether there is any substance in such a grievance. Shortly

put the petitioners' grievance, which stands identical in all the writ

petitions, stand out to be that though the petitioners were favoured with

an order of bail in one case but is being detained by reason of production

warrant in another matter and resultantly the petitioners are languishing

in the jails being deprived of the order of grant of bail, - this aspect of

the matter has been stated to be violative of Article 21. In our view,

however, the situation as noticed above does to ipso facto render it

violative of Article 21. Article 21 of the Constitution postulates

deprivation of life or personal liberty except according to the procedure

established by law. Admittedly, the protection of personal liberty stands

expanded to make the right to life under Article 21 more meaningful, the

language of the Article itself records an exception indicating thereby that

a person may be deprived of his liberty in accordance with procedure

established by law and it is in this sphere the courts will scrupulously

observed as to whether the same stands differently and contra as regards

the procedure established by law and in the event it is not so done, it

would be a plain exercise of judicial power to grant redress to the

petitioner. While there is no difficulty in appreciating the grievance and

grant of relief in a given case but facts are too insufficient however, to

come to a conclusion as regards the infraction of Article 21. Production

warrants have been spoken of without any details whatsoever therefor - the

reason offered is that the petitioners, in fact, are not in the know of

things being behind the prison bars and it starts pouring in from all parts

of the country and in the factual backdrop, as noticed above it is a well

nigh impossibility to come to a finding as regards the infraction of

Article 21 and since in the factual matrix, no infraction can be identified

and thus question of sustaining the plea of infringement of Article 21

would not arise. In any event the liberty of the petitioners cannot said to

have been trifled within the absence of due process of law. Deprivation, if

any cannot claimed to be not in accordance with due process of law.

On the score of anticipatory bail, it is trite knowledge that Section 438

of the Crl. P. Code is made applicable only in the event of there being an

apprehension of arrest - The petitioners in the writ petitions herein are

all inside the prison bars upon arrest against all cognizable offences, and

on the wake of the aforesaid question relieving the petitioners from

unnecessary disgrace and harassment would not arise.

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In that view of the matter and since no infraction can be identified, the

petition also cannot be sustained as regards the issue of anticipatory bail

under Section-438.

A large number of decisions have been relied upon as regards this long

incarceration. We do however, feel it expedient to deal with some of them

at this juncture since more or less identical issues have been dealt with

in those judgments. The first in the line of decisions referred to is in

regard to Kartar Singh v. State of Punjab, [1994] 3 SCC 569 wherein this

Court in paragraph 351 of the report stated :

"No doubt, liberty of a citizen must be zealously safeguarded by the

courts; nonetheless the courts while dispensing justice in cases like the

one under the TADA act, should keep in mind not only the liberty of the

accused but also the interest of the victim and their near and dear and

above all the collective interest of the community and the safety of the

nation so that the public may not loose faith in the system of judicial

administration and indulge in private retribution."

The fact situation of the matter under consideration does not warrant

further discussion more so by reason of the fact that the collective

interest of the community is said to be affected. The decision thus does

not lend any assistance to the petitioners herein.

The decision of this Court in Supreme Court Legal Aid Committee

Representing Undertrial Prisoners v. Union of India & Ors., [1994] 6 SCC

731 and the directions contained therein has no relevance in the instant

case, as such we need not dilate on the issue or with the decision any

further.

In Shaheen Welfare Association \. Union of India & Ors., [1996] 2 SCC 616;

R.D. Upadhyay v. State of A.P. & Ors., [1996] 3 SCC 422 and in "Common

Cause" A Registered Society through its Director v. Union of India & Ors.,

[1996] 4 SCC 33 and the direction issued to the High Courts to deal with

the pending criminal proceedings regarding the offences involving

corruption, misappropriation of public funds, cheating etc. for disposal of

the cases on priority basis does not in fact have any impact in the present

context - though, however, we also deem it fit to issue similar directives

in the matter under consideration irrespective of the factum of our finding

on infraction of Article 21 as also under Section 438 of the Code.

It is no doubt true that this Court earlier on two occasions in Writ

Petition (Crl.) No. 256/99 and Writ Petition (Crl.) Nos. 72-75/2000, has

granted the relief that in the event of the arrest of the petitioner in

connection with any criminal case in his capacity as Managing

Director/Director of the Group of companies, the arresting officer shall

release him on bail on his executing a bond to the satisfaction of the

arresting officer. This order obviously tantamounts to an order, invoking

the provisions of Section 438 of the Code of Criminal Procedure. The Court

adopted the aforesaid procedure to find out a solution in the peculiar

situation and being of the opinion that even though the accused is able to

get orders bail from different Courts, where cases are pending, but in view

of the large number of cases against the accused throughout the country, it

has physically not become possible to release the accused from the custody.

If an accused facing a charge under Sections 406, 409, 420 and 120-B is

ordinarily not entitled to invoke the provisions of Section 438 of the

Criminal Procedure Code unless it is established that such criminal

accusation is not a bona fide one, it is difficult to conceive that an

accused who is involved in thousands of cases in different parts of the

country by cheating millions of countrymen, can be given benefit of the

privilege of anticipatory bail as a matter of routine, as was done in the

two cases, on the basis of which the present batch of cases have been

filed. In the manner in which these white-collared crimes are committed and

the extent to which it has pervaded the society at large, we are of the

considered opinion that the two cases decided by this Court earlier would

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not be of universal application and cannot be used as a precedent for

availing of the privilege in the nature of an anticipatory bail. The Court

itself was conscious of the peculiar situation and, therefore, noticed that

the Court is exercising its discretion in the peculiar nature and facts of

the case. We do not agree with the proposition that an accused being

involved in large number of criminal cases in different parts of the

country, if is not able to be released from custody even on getting bail

orders in some cases, itself would tantamount to violation of the right of

a citizen under Article 21 of the Constitution. The object of Article 21 is

to prevent encroachment upon personal liberty by the Executive save in

accordance with law, and in conformity with the provisions thereof. It is,

therefore, imperative that before a person is deprived of his life or

personal liberty, the procedure established by law must strictly be

followed and must not be departed from, to the disadvantage of the person

affected. In each case where a person complains of the deprivation of his

life or personal liberty, the Court, in exercise of its constitutional

power of judicial review, has to decide whether there is a law authorising

such deprivation and whether in the given case, the procedure prescribed by

such law is reasonable, fair and just, and not arbitrary, whimsical and

fanciful. On account of liberal interpretation of the words 'life' and

'liberty' in Article 21, the said Article has now come to be invoked almost

as a residuary right, even to an extent which the founding fathers of the

Constitution never dreamt of. In a country like ours, if an accused is

alleged to have deceived millions of countrymen, who have invested their

entire life's saving in such fictitious and frivolous companies promoted by

the accused and when thousands of cases are pending against an accused in

different parts of the country, can an accused at all complain of

infraction of Article 21, on the ground that he is not being able to be

released out of jail custody in view of different production warrants

issued by different Courts. Issuance of production warrants by the Court

and the production of accused in Court, in cases where he is involved is a

procedure established by law and consequently, the accused cannot be

permitted to make a complain of infraction of his rights under Article 21.

In our considered opinion, it would be a misplaced sympathy of the Court on

such while-collared accused persons whose acts of commission and omission

has ruined a vast majority of poor citizens of this country. Though we

agree that in a given case, Court may be justified in directing release of

the accused, taking a stock of the entire situation in the case. While,

therefore, we agree with the submissions of the counsel for the

petitioners-accused that an accused could maintain a petition under Article

32, but the Court would not be justified in directing the release of such

accused under a blanket order like the one, which has been relied upon by

the counsel for the accused persons and such a course of action would

perpetrate gross injustice.

We are, therefore, unable to agree with the method adopted by this Court in

Writ Petition (Crl.) No. 256/99 and Writ Petition (Crl.) Nos. 72-75/2000

since in our opinion to adopt the method would be giving a premium to the

accused persons. Right of an accused to have speedy trial is now recognised

as a right under Article 21. Even it has been extended to investigation of

offences against child offenders in the case of Sheela Burse and Am: v.

Union of India and Ors., AIR (1986) SC 1773. The procedural fairness

required by Article 21, including the right to a speedy trial, has,

therefore to be observed throughout and to be borne in mind. In course of

hearing, we had requested the learned Additional Solicitor General to

evolve a scheme for expeditious disposal of criminal cases of the nature

with which we are concerned in the present batch of cases. But no concrete

proposal came till the conclusion of the hearing of these matters. While,

therefore, we are not granting any relief to the accused persons on the

reasons already indicated, we would commend upon the Central Government to

evolve certain formula or procedure, so that the accused will not complain

of undue harassment on account of protraction of their cases and the

persons deceived who have filed complaints, will be satisfied with the

early conclusions of the trial.

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True, there are certain orders passed by this Court wherein special

directions have been given but this Court while passing the orders have not

only been extremely careful but was cautious enough to record therein that

the order was passed on the special facts and the circumstances in the

issue and the same ought not to be treated as a precedent - on the wake of

recording of such a caution and the order being in the specific facts of

the matter in issue question of the same being treated as a judicial

precedent would not arise, in any event in the view as noticed herein

above, the said orders as a matter of fact have lost its significance.

As regards the issue of a single-offence, we are afraid that the fact-

situation of the matters under consideration would not permit to lend any

credence to such as submission. Each individual deposit agreement shall

have to be treated a separate and individual transaction brought about by

the allurement of the financial companies, since the parties are different,

the amount of deposit is different as also the period for which the deposit

was effected. It has all the characteristics of independent transactions

and we do not see any compelling reason to hold it otherwise. The plea as

raised also cannot have our concurrence.

In almost all the petitions there has been a prayer for exemption from

personal appearance - we are afraid that such a direction cannot be had

from this Court since it is within the powers of the Magistrate and in his

judicial discretion to dispense with the personal appearance of an accused

and as such be it provided here that it would be open to the party to apply

to the concerned trial/sessions court for such exemption and in the event

of there being such an application, the same be disposed of in accordance

with the law. (see in this context the decision of this Court in A/A.

Bhaskar Industries Ltd. v. M/s. Bhiwani Denim & Apparels Ltd. & Ors., JT

(2001) 7 SC 127.

Another prayer which has been made in almost all the petitioners is that

the investigations of all cases should be transferred to the CBI. Such a

prayer has been rejected in the earlier orders as relied upon by the

petitioners herein and as such we do not feel it expedient to dilate on the

issue excepting recording out concurrence with the earlier view expressed

and thereby rejecting the same.

In that view of the matter, we conclude that while in the contextual fact,

a petition under Article 32 is maintainable but the petitioners are not

entitled to any relief by reason of insufficiency of available materials on

record as regards the issue of infraction of Article 21. In regard to the

prayer for consolidation the petitioner would be at liberty to approach the

High Court in accordance with law. Similar is the situation as regards the

orders of the Consumer Forum and the petitioner in the normal course of

events would be at liberty to ventilate the grievance if any, before the

Appellate Forum in accordance with law.

By reason of the above, the writ petitions fail and are dismissed excepting

to the extent as specifically noticed above.

Be it placed on record that observations made in this judgment and order

ought not to be treated as having any effect in the trial and each matter

be dealt with in accordance with law and uninfluenced by the factum of

rejection of these writ petitions.