Serious Fraud Investigation Office vs. Aditya Sarda

2025 INSC 477
REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. OF 2025
(@ SPECIAL LEAVE PETITION (CRIMINAL) NO. 13956
of 2023)


SERIOUS FRAUD INVESTIGATION OFFICE
…. APPELLANT(S)

VERSUS

ADITYA SARDA .…RESPONDENT(S)


WITH

CRIMINAL APPEAL NO. OF 2025
(@ SLP (CRL.) NO. 14033 OF 2023 )

CRIMINAL APPEAL NO. OF 2025
(@ SLP (CRL.) NO. 15318 OF 2023 )

CRIMINAL APPEAL NO. OF 2025
(@ SLP (CRL.) NO. 15322 OF 2023 )

CRIMINAL APPEAL NO. OF 2025
(@ SLP (CRL.) NO. 13960 OF 2023 )
Signature Not Verified
Digitally signed by
NITIN TALREJA

Date: 2025.04.09
15:34:52 IST
Reason:
SLP (CRL.) No.13956 of 2023 Page 1 of 55


CRIMINAL APPEAL NO. OF 2025
(@ SLP (CRL.) NO. 15326 OF 2023 )

CRIMINAL APPEAL NO. OF 2025
(@ SLP (CRL.) NO. 15333 OF 2023 )

CRIMINAL APPEAL NO. OF 2025
(@ SLP (CRL.) NO. 14128 OF 2023 )

CRIMINAL APPEAL NO. OF 2025
(@ SLP (CRL.) NO. 13965 OF 2023 )

CRIMINAL APPEAL NO. OF 2025
(@ SLP (CRL.) NO. 13975 OF 2023 )

CRIMINAL APPEAL NO. OF 2025
(@ SLP (CRL.) NO. 13983 OF 2023 )

CRIMINAL APPEAL NO. OF 2025
(@ SLP (CRL.) NO. 13976 OF 2023 )

CRIMINAL APPEAL NO. OF 2025
(@ SLP (CRL.) NO. 13971 OF 2023 )

CRIMINAL APPEAL NO. OF 2025
(@ SLP (CRL.) NOS.13973-13974 OF 2023 )

CRIMINAL APPEAL NO. OF 2025
(@ SLP (CRL.) NO. 15311 OF 2023 )

CRIMINAL APPEAL NO. OF 2025
(@ SLP (CRL.) NO. 13978 OF 2023 )
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J U D G M E N T

BELA M. TRIVEDI, J.

1. Leave granted.
2. This batch of sixteen Appeals being interconnected
with each other and arising out of the proceedings
being CIS No. COMA/5/2019 pending before the
Special Judge, Gurugram, are being decided by this
common judgment.
3. In these cases, there is a brazen attempt made on the
part of the respondents-accused to stall the criminal
proceedings initiated against them, in respect of the
serious economic offences allegedly committed by
them, by not respecting the summons/warrants
issued by the Special Court from time to time and
thereby causing obstruction in the administration of
justice. A few basic common facts necessary for
deciding the present appeals may be stated as under:
-
(i) The Appellant i.e. Serious Fraud Investigation
Office (SFIO) is a statutory body constituted and
established under Section 211 of the
Companies Act of 2013. The Ministry of
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Corporate Affairs (MCA) vide the order dated
20.06.2018 in exercise of its powers conferred
under Section 212(1)(c) of the Companies Act,
2013 and Section 43(2) and (3)(c)(i) of Limited
Liability Partnership Act, 2008 directed the SFIO
to inquire and investigate into the affairs of 125
Companies of Adarsh Group (hereinafter
referred to as “CIUs”). On 25.02.2019, the MCA
further ordered to investigate into the affairs of
20 other companies and two persons.
(ii) On 09.05.2019, the SFIO, on completion of the
investigation submitted an Investigation report
to the MCA recommending prosecution against
the respondents for the various offences under
the Companies Act (1956 and 2013) and of the
IPC. Accordingly, on 18.05.2019, a Criminal
Complaint being COMA/5/2019, came to be
filed by the SFIO in the Special Court at
Gurugram impleading 181 Accused including
the respondents in the instant Appeals, under
Section 439(2) read with Section 436(1)(a), (d)
and (2) read with Section 212 of the Companies
Act, 2013, read with Section 621(1) of the
Companies Act, 1956, read with Section 50 of
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the Limited Liability Partnership Act, 2008, read
with Section 193 of the Code of Criminal
Procedure, seeking taking of cognizance and
prosecution of the Accused named therein for
the offences committed by them jointly and
severally, under the various provisions of the
Companies Act and the Indian Penal Code as
mentioned therein.
(iii) It has been alleged in the complaint that one
Adarsh Credit Cooperative Society Limited
(ACCSL) was a Multi-State Credit Cooperative
Society, founded by one Mukesh Modi, and was
managed and controlled by him and his family
and his associates.
(iv) The said society accepted the deposits from its
members, who were mostly low to middle
income individuals. The ACCSL had 800+
branches, 20 lakhs members, 3.7 lakhs
advisors and Rs.9253 crores of outstanding
deposits as on 31.05.2018. It is further alleged
that the controllers of the Society i.e. Mukesh
Modi, Rahul Modi and others got incorporated
around 125 companies (Adarsh Group of
Companies), and started controlling the said
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Companies by either becoming themselves as
the directors or making their members and
associates as the directors of the said
Companies. On the completion of the
investigation it was found that the funds to the
tune of Rs.1700 crores were given by the
ACCSL as illegal loans to its own controlled 70
Adarsh Group of Companies (CUIs) and certain
other companies belonging to the other groups
of persons, contrary to settled the position that
a company could not be a member of a multi-
state credit cooperative society and therefore
loans could not have been given to such
companies by the ACCSL. It is further alleged
that total amount of Rs.4120 crores were the
outstanding balance as on 31.03.2018 against
such illegal loans given by the ACCSL.
(v) It is also further alleged by the SFIO that the
illegal loans obtained from ACCSL by the
Companies belonging to Adarsh Group and
Ridhi Sidhi Group were on the basis of forged
financial/loan documents submitted/signed by
the directors of the Companies belonging to the
Adarsh Group. The said directors had siphoned
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off the said funds/loans obtained from the
ACCSL in connivance of the other accused. The
directors had signed off balance sheets of the
companies showing the said funds obtained
ACCSL as “loans taken from a financial
institution”.
(vi) The Special Court vide the detailed Order dated
03.06.2019 took the cognizance of all the
offences alleged against the accused including
the respondents, under the Companies Act and
under the IPC, and summoned all the accused
including the respondents herein by issuing
bailable warrants in the sum of Rs.10,000/- with
one surety in the like amount with the direction
to appear on 30.07.2019.
(vii) There being some clerical/typographical errors
found in the order dated 03.06.2019, the
Special Court corrected the cognizance order
vide the order dated 11.07.2019. Since the
respondents-accused allegedly did not allow
the said bailable warrants issued by the Special
Court to be executed on them, by hiding
themselves and not making themselves
available at the given residential addresses, in
SLP (CRL.) No.13956 of 2023 Page 7 of 55


collusion with the process servers, the Special
Court had to issue non-bailable warrants
against the respondents from time to time by
passing detailed orders. In some of the cases,
the Special Court also initiated proclamation of
offenders proceedings against the accused.
4. The details of the status of each of the respondents
and the orders passed by the Special Court issuing
bailable/non-bailable warrants/initiating proclamation
proceedings against them are tabulated hereunder for
the sake of convenience.

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5. If the individual cases of the respondents are taken
into consideration, the following facts have emerged
as transpiring from the chart tabulated hereinabove
read with the order dated 25.03.2022 passed by the
Special Court initiating proclamation proceedings
under Section 82 of Cr.P.C.
(i) In case of the respondent Aditya Sarda
(Accused No.141), the bailable/non-bailable
warrants could not be executed, as he was not
available at the last known address. His
anticipatory bail application was rejected by the
Special Court on 08.07.2020, in which he had
mentioned the same address as mentioned in
the complaint. The Proclamation Order was
passed against him on 25.03.2022. He was
granted anticipatory bail by the High Court vide
the order dated 20.04.2023 which is impugned
herein.
(ii) In case of the respondent Abhay K Shah
(Accused No.127), the non-bailable warrants
issued against him were received back
unexecuted with the report that his house was
locked since long. His anticipatory bail
application was rejected by the Special Court
SLP (CRL.) No.13956 of 2023 Page 19 of 55


on 23.09.2019, and was granted by the High
Court vide the order dated 29.03.2023, which is
impugned herein.
(iii) In case of the respondent Nazima Khan
(Accused No.152), the non-bailable warrants
issued against him were received back
unexecuted with the report that the accused
was not available at home. His anticipatory bail
application was dismissed by the Special Court
on 11.05.2022 and he was granted anticipatory
bail by the High Court vide the order dated
29.03.2023, which is impugned herein.
(iv) In case of the respondent Shinder Pal Singh
(Accused No.137), the non-bailable warrants
issued against him were received back
unexecuted with the report that he had left the
house at given address. His anticipatory bail
was dismissed by the Special Court on
13.09.2019 and he was granted anticipatory
bail by the High Court vide the order dated
29.03.2023, which is impugned herein.
(v) In case of the respondent Deepak Shrimali
(Accused No.129), the non-bailable warrants
issued against him were received back
SLP (CRL.) No.13956 of 2023 Page 20 of 55


unexecuted with the report that as per his
mother the accused was not available at home.
His anticipatory bail was rejected by the Special
Court vide the order dated 25.05.2022 and he
was granted anticipatory bail by the High Court
on 29.03.2023, which is impugned herein.
(vi) In case of the respondent Mahesh Dutt
Sharma, (Accused no.178), there was no non-
bailable warrants issued, nor any proclamation
proceedings were initiated against him by the
Special Court. His anticipatory bail was
rejected by the Special Court vide the order
dated 02.07.2020 and he was granted
anticipatory bail by the High Court vide the
order dated 29.03.2023, which is impugned
herein.
(vii) In case of the respondent Nitin Rathore
(Accused No.116), the non-bailable warrants
issued against him were received back
unexecuted with the report that he had left the
house at the given address. His anticipatory
bail was rejected by the Special Court vide the
order dated 15.11.2019 and he was granted
anticipatory bail by the High Court vide the
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order dated 29.03.2023, which is impugned
herein.
(viii) In case of Shyam Bihari Gupta (Accused
No.165), the non-bailable warrants issued
against him were received back unexecuted
with the report that as per the gardener in his
house, he was not available at home. His
anticipatory bail was rejected by the Special
Court vide the order dated 20.08.2020 and he
was granted anticipatory bail by the High Court
vide the order dated 29.03.2023, which is
impugned herein.
(ix) In case of the respondent Naveen Choudhary
(Accused No. 162), the non-bailable warrants
issued against him were not received back
either executed or unexecuted and as per the
public prosecutor appearing in the case, there
was no other address available. His
anticipatory bail was rejected by the Special
Court vide the order dated 21.12.2019 and he
was granted anticipatory bail by the High Court
vide the order dated 29.03.2023, which is
impugned herein.
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(x) In case of the respondent Manish Chaudhary
(Accused No. 128), the non-bailable warrants
issued against him were received back
unexecuted with the report that as per his wife,
he was not available at home. His anticipatory
bail was rejected by the Special Court vide the
order dated 13.05.2020 and he was granted
anticipatory bail by the High Court vide the
order dated 29.03.2023, which is impugned
herein.
(xi) In case of the respondent Shabbir Khan,
(Accused No. 153), the non-bailable warrants
issued against him were received back
unexecuted with the report that as per the
Chowkidar in his house, he was not at home.
His anticipatory bail was rejected by the Special
Court vide the order dated 11.05.2022 and he
was granted anticipatory bail by the High Court
vide the order dated 29.03.2023, which is
impugned herein.
(xii) In case of the respondent Saurabh Tak
(Accused No. 172), the non-bailable warrants
issued against him were received back
unexecuted with the report that he had left the
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house at the given address. His anticipatory
bail was rejected by the Special Court vide the
order dated 20.08.2020 and he was granted
anticipatory bail by the High Court vide the
order dated 29.03.2023, which is impugned
herein.
(xiii) In case of the respondent Jinender Vyas
(Accused No. 118), the non-bailable warrants
issued against him were received back
unexecuted with the report that he had left the
house at the given address. His anticipatory
bail was rejected by the Special Court vide the
order dated 24.09.2020 and he was granted
anticipatory bail by the High Court vide the
order dated 29.03.2023, which is impugned
herein.
(xiv) In case of the respondent Akshat Singh
(Accused No. 136), the non-bailable warrants
issued against him were received back
unexecuted with the report that he had left the
house at the given address. His first
anticipatory bail application was dismissed as
withdrawn by the Special Court vide the order
dated 15.12.2021, however his second
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anticipatory bail application was granted by the
Special Court vide the order dated 20.07.2022.
It appears that a Petition seeking cancellation
of his bail was rejected by the High Court vide
the order dated 20.03.2023 which is impugned
herein. Similarly, in case of the respondent
Naveen Kumar (Accused No. 139), the non-
bailable warrants issued against him were
received back unexecuted with the report that
no such person resided at the given address.
However, it appears that his anticipatory bail
application was granted by the Special Court
vide the order dated 19.07.2022 and the High
Court rejected the Petition filed by the SFIO
seeking cancellation of his bail, vide the order
dated 20.03.2023, which is impugned herein.
(xv) In case of the respondent Prakash Chandra
Purohit (Accused No.133), the non-bailable
warrants issued against him were received
back unexecuted with the report that the house
was locked since long. His anticipatory bail
application was rejected by the Special Court
vide the order dated 25.05.2022 and he was
granted anticipatory bail by the High Court vide
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the order dated 29.03.2023, which is impugned
herein.
(xvi) In case of the respondent Paras Bolia (Accused
No. 121), the non-bailable warrants issued
against him were received back unexecuted
with the report that he had left the house at the
given address. His anticipatory bail was
rejected by the Special Court on 08.07.2020
and he was granted anticipatory bail by the
High Court vide the order dated 29.03.2023,
which is impugned herein.

6. APPEALS ARISING OUT OF SLP (CRL.) NO.13973-
13974/2023 AND SLP (CRL.) NO.15326/2023: -
Heard learned Advocate Mr. Padmesh Mishra for the
Appellant SFIO and the learned Senior Advocates Mr.
Siddharth Luthra, Mr. Nadkarni, and Mr. Somayajulu
for the respondents in these appeals.
7. At the outset, the learned Advocate Mr. Padmesh
Mishra appearing for the Appellant SFIO, had fairly
conceded that there was no non-bailable warrant
issued against the respondent Mahesh Dutt Sharma
(SLP Crl. No.15326/2023) by the Special Court, nor
any proclamation proceedings were initiated against
him. He also did not dispute that in cases of
SLP (CRL.) No.13956 of 2023 Page 26 of 55


respondent Akshat Singh and respondent Naveen
Kumar (SLP Crl. Nos.13973/2023 and 13974/2023),
the Special Court itself had granted the anticipatory
bail to them, and that the petitions filed by the SFIO
against the said orders were dismissed by the High
Court. Under the circumstances, we do not propose
to entertain the Appeals arising out of SLP (Crl.)
Nos.13973-13974/2023 and SLP (Crl.)
No.15326/2023, and the same are dismissed.

8. APPEALS IN OTHER CASES: - Heard the learned
Advocates Mr. Padmesh Mishra for the Appellant -
SFIO, and the learned Senior Advocates Mr.
Siddharth Dave, Mr. Basant, Mr. Nagamuthu, Ms.
Meenakshi Arora, Mr. Gautam Awasthi, Mr.
Rudreshwar Singh, Mr. Devesh Bhatia, Mr. Abhishek
Singh, Mr. Vivek Soni, Mr. Arjun Sharma and Mr.
Aniruddh Joshi, for the respondents in these appeals.
9. The facts that have emerged from the record, clearly
demonstrate the respondents in this set of appeals
had avoided the execution of the non-bailable
warrants even after their anticipatory bail applications
were rejected in 2019-2020-2022 by the Special
Court. Though it was contended by the learned
Advocates appearing for the respondents that the
SLP (CRL.) No.13956 of 2023 Page 27 of 55


respondents were not aware about the proceedings,
the same cannot be accepted. The very fact of their
filing anticipatory bail applications before the Special
Court, falsifies the submissions made on behalf of the
learned counsels for the said respondents that the
respondents were not aware of the complaint
proceedings filed by the SFIO in the Special Court.
There is no justification coming forth from the said
respondents as to why after the rejection of their
anticipatory bail applications by the Special Court,
they did not appear before the Special Court and
made themselves unavailable at the given addresses
furnished by them during the course of the
investigation by the SFIO. It may be noted that the
anticipatory bail applications, of the said respondents
were allowed by the High Court only in March-April
2023. Since, the said respondents had concealed
themselves and avoided to remain present before the
Special Court despite they having the knowledge
about the pendency of the complaint proceedings, the
Special Court was perfectly justified in initiating the
proclamation proceedings against the said
respondents.

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LEGAL PROVISIONS:
10. At this juncture, it would be beneficial to reproduce
some of the provisions of the Companies Act as also
the Code of Criminal Procedure.
11. Section 212 of the Companies Act, 2013 pertains to
the “Investigation into the affairs of Company by
Serious Fraud Investigation Office”. The relevant part
thereof is reproduced below:
“ 212. Investigation into affairs of Company
by Serious Fraud Investigation Office. —

(1) Without prejudice to the provisions of section
210, where the Central Government is of the
opinion, that it is necessary to investigate
into the affairs of a company by the Serious
Fraud Investigation Office—
(a) on receipt of a report of the Registrar
or inspector under Section 208;
(b) on intimation of a special resolution
passed by a company that its affairs are
required to be investigated;
(c) in the public interest; or
(d) on request from any Department of
the Central Government or a State
Government, the Central Government
may, by order, assign the investigation
into the affairs of the said company to the
Serious Fraud Investigation Office and its
Director, may designate such number of
inspectors, as he may consider
necessary for the purpose of such
investigation.
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(2) to (5)…………………………………………
(6) Notwithstanding anything contained in the
Code of Criminal Procedure, 1973 (2 of
1974), offence covered under section 447 of
this Act shall be cognizable and no person
accused of any offence under those sections
shall be released on bail or on his own bond
unless—
(i) the Public Prosecutor has been given
an opportunity to oppose the application
for such release; and
(ii) where the Public Prosecutor opposes
the application, the court is satisfied that
there are reasonable grounds for
believing that he is not guilty of such
offence and that he is not likely to commit
any offence while on bail:
Provided that a person, who, is under the
age of sixteen years or is a woman or is sick
or infirm, may be released on bail, if the
Special Court so directs:
Provided further that the Special Court shall
not take cognizance of any offence referred
to this subsection except upon a complaint
in writing made by—
(i) the Director, Serious Fraud
Investigation Office; or
(ii) any officer of the Central Government
authorised, by a general or special order
in writing in this behalf by that
Government.
(7) to (17)………………………………………..”
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12. Section 447 of the Companies Act, 2013 pertains to
the “Punishment for fraud” which reads as under: -
“ 447. Punishment for fraud. —
Without prejudice to any liability including
repayment of any debt under this Actor any
other law for the time being in force, any person
who is found to be guilty of fraud, 1 [involving an
amount of at least ten lakh rupees or one per
cent. of the turnover of the company, whichever
is lower] shall be punishable with imprisonment
for a term which shall not be less than six
months but which may extend to ten years and
shall also be liable to fine which shall not be less
than the amount involved in the fraud, but which
may extend to three times the amount involved
in the fraud:

Provided that where the fraud in question
involves public interest, the term of
imprisonment shall not be less than three years.

Provided further that where the fraud involves
an amount less than ten lakh rupees or one per
cent. of the turnover of the company, whichever
is lower, and does not involve public interest,
any person guilty of such fraud shall be
punishable with imprisonment for a term which
may extend to five years or with fine which may
extend to fifty lakh rupees or with both.

Explanation. —For the purposes of this
section—
(i) “fraud”, in relation to affairs of a company or
any body corporate, includes any act,
omission, concealment of any fact or abuse
SLP (CRL.) No.13956 of 2023 Page 31 of 55


of position committed by any person or any
other person with the connivance in any
manner, with intent to deceive, to gain undue
advantage from, or to injure the interests of,
the company or its shareholders or its
creditors or any other person, whether or not
there is any wrongful gain or wrongful loss;
(ii) “wrongful gain” means the gain by unlawful
means of property to which the person
gaining is not legally entitled;
(iii) “wrongful loss” means the loss by unlawful
means of property to which the person losing
is legally entitled.”

13. Section 82 of Cr.P.C., 1973 pertains to the
“Proclamation for person absconding”, relevant part
thereof reads as under: -
“82. Proclamation for person absconding. —
(1) If any Court has reason to believe (whether
after taking evidence or not) that any person
against whom a warrant has been issued by it
has absconded or is concealing himself so that
such warrant cannot be executed, such Court
may publish a written proclamation requiring
him to appear at a specified place and at a
specified time not less than thirty days from the
date of publishing such proclamation.

(2) to (5)…………………………………”

14. Section 204 of Cr.P.C., 1973 pertains to the “Issue of
process”, relevant part thereof reads as under: -
204. Issue of process. —
“
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(1) If in the opinion of a Magistrate taking
cognizance of an offence there is sufficient
ground for proceeding, and the case appears to
be—
(a) a summons-case, he shall issue his
summons for the attendance of the accused,
or
(b) a warrant-case, he may issue a warrant,
or, if he thinks fit, a summons, for causing the
accused to be brought or to appear at a
certain time before such Magistrate or (if he
has no jurisdiction himself) some other
Magistrate having jurisdiction.

(2) to (5)………………………………….”

15. Section 438 of Cr.P.C., 1973 pertains to the
“Direction for grant of bail to person apprehending

arrest”, relevant part thereof reads as under: -
“ 438. Direction for grant of bail to person
apprehending arrest. —
(1) When any person has reason to believe
that he may be arrested on an accusation of
having committed a non-bailable offence, he
may apply to the High Court or the Court of
Session for a direction under this section; and
that Court may, if it thinks fit, direct that in the
event of such arrest, he shall be released on
bail; and that Court may, after taking into
consideration, inter alia , the following factors,
namely:-
(i) the nature and gravity of the accusation.;
(ii) the antecedents of the applicant
including the fact as to whether he has
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previously undergone imprisonment on
conviction by a Court in respect of any
cognizable offence; (iii) the possibility of the
applicant to flee from justice; and
(iv) where the accusation has been made
with the object of injuring or humiliating the
applicant by having him so arrested,
either reject the application forthwith or issue an
interim order for the grant of anticipatory bail:
Provided that, where the High Court or,
as the case may be, the Court of Session, has
not passed any interim order under this sub-
section or has rejected the application for grant
of anticipatory bail, it shall be open to an officer
in-charge of a police station to arrest, without
warrant the applicant on the basis of the
accusation apprehended in such application.
(1A) Where the Court grants an interim
order under sub-section(1), it shall forthwith
cause a notice being not less than seven days
notice, together with a copy of such order to be
served on the Public Prosecutor and the
Superintendent of Police, with a view to give the
Public Prosecutor a reasonable opportunity of
being heard when the application shall be finally
heard by the Court.
(1B) The presence of the applicant
seeking anticipatory bail shall be obligatory at
the time of final hearing of the application and
passing of final order by the Court, if on an
application made to it by the Public Prosecutor,
the Court considers such presence necessary in
the interest of justice.

(2) to (4)………………………………”
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LEGAL POSITION:

16. Now, as explicitly clear from the bare reading of
Section 204 of the Code, when the Court taking
cognizance of an offence, is of the opinion that there
is sufficient ground for proceeding with the complaint,
and the case appears to be a warrant case, the Court
has a discretion either to issue a warrant, or,
summons for causing the accused to be brought or
to appear at a certain time before the Court (if the
Court does not have the jurisdiction, to appear before
the Court having jurisdiction). It is well settled
proposition of law that in complaint cases, when a
warrant or summons issued by the Court for bringing
the accused before it, is not executed, and if the
Court is satisfied that the person will not voluntarily
appear in the Court; or the police authorities are
unable to find the person to serve him with a
summons; or when it is considered that the person
could harm someone if not placed into custody
immediately, the concerned Court could issue non-
bailable warrant to bring him to the Court.
17. A very pertinent discussion and observations made
by a three Judge Bench of this Court in the case of
Inder Mohan Goswami and Another vs. State of
SLP (CRL.) No.13956 of 2023 Page 35 of 55


1
Uttaranchal and Others, in this regard may be
reproduced hereinbelow: -
“49. In State of U.P. v. Poosu [(1976) 3 SCC 1:
1976 SCC (Cri) 368] at SCC p. 5, para 13 the
Court observed:
“ 13 . … Whether in the circumstances of the
case, the attendance of the accused-
respondent can be best secured by issuing
a bailable warrant or non-bailable warrant, is
a matter which rests entirely in the discretion
of the Court. Although, the discretion is
exercised judicially, it is not possible to
computerise and reduce into immutable
formulae the diverse considerations on the
basis of which this discretion is exercised.
Broadly speaking, the court would take into
account the various factors such as,
the nature and seriousness of the
offence, the character of the evidence,
circumstances peculiar to the accused,
possibility of his absconding, larger
interest of the public and State.
[See State v. Capt. Jagjit Singh , AIR
1962 SC 253 at p. 255, para 3.]

50 & 51……….

52. Just as liberty is precious for an individual so
is the interest of the society in maintaining law
and order. Both are extremely important for the
survival of a civilised society. Sometimes in the
larger interest of the public and the State it
becomes absolutely imperative to curtail
freedom of an individual for a certain period,

1
(2007) 12 SCC 1
SLP (CRL.) No.13956 of 2023 Page 36 of 55


only then the non-bailable warrants should be
issued.

When non-bailable warrants should be
issued
53. Non-bailable warrant should be issued to
bring a person to court when summons or
bailable warrants would be unlikely to have the
desired result. This could be when:
• it is reasonable to believe that the person
will not voluntarily appear in court; or
• the police authorities are unable to find the
person to serve him with a summon; or
• it is considered that the person could harm
someone if not placed into custody
immediately.”


18. Now, so far as anticipatory bail is concerned, this
Court has consistently emphasized that anticipatory
bail should not be granted as a matter of routine,
particularly in serious economic offences, involving
large scale fraud, public money or complex financial
crimes. In P. Chidambaram vs. Directorate of
2
Enforcement , it was observed as under: -
“ Grant of anticipatory bail in exceptional
cases
69. Ordinarily, arrest is a part of procedure of the
investigation to secure not only the presence of
the accused but several other purposes. Power
under Section 438 CrPC is an extraordinary
power and the same has to be exercised

2
(2019) 9 SCC 24
SLP (CRL.) No.13956 of 2023 Page 37 of 55


sparingly. The privilege of the pre-arrest bail
should be granted only in exceptional cases.
The judicial discretion conferred upon the court
has to be properly exercised after application of
mind as to the nature and gravity of the
accusation; possibility of the applicant fleeing
justice and other factors to decide whether it is
a fit case for grant of anticipatory bail….

70. ……………………………….

71. Article 21 of the Constitution of India states
that no person shall be deprived of his life or
personal liberty except according to procedure
prescribed by law. However, the power
conferred by Article 21 of the Constitution of
India is not unfettered and is qualified by the
later part of the Article i.e. “…except according
to a procedure prescribed by law”. In State of
M.P. v. Ram KishnaBalothia [ State of
M.P. v. Ram Kishna Balothia , (1995) 3 SCC
221: 1995 SCC (Cri) 439] , the Supreme Court
held that the right of anticipatory bail is not a part
of Article 21 of the Constitution of India and held
as under: (SCC p. 226, para 7)
“ 7 . … We find it difficult to accept the
contention that Section 438 of the Code of
Criminal Procedure is an integral part of
Article 21. In the first place, there was no
provision similar to Section 438 in the old
Criminal Procedure Code. The Law
Commission in its 41st Report
recommended introduction of a provision for
grant of anticipatory bail. It observed:
‘We agree that this would be a useful
advantage. Though we must add that it is
SLP (CRL.) No.13956 of 2023 Page 38 of 55


in very exceptional cases that such
power should be exercised.’
In the light of this recommendation, Section 438
was incorporated, for the first time, in the
Criminal Procedure Code of 1973. Looking to
the cautious recommendation of the Law
Commission, the power to grant anticipatory bail
is conferred only on a Court of Session or the
High Court. Also, anticipatory bail cannot be
granted as a matter of right. It is essentially a
statutory right conferred long after the coming
into force of the Constitution. It cannot be
considered as an essential ingredient of Article
21 of the Constitution. And its non-application to
a certain special category of offences cannot be
considered as violative of Article 21 .
(emphasis supplied)

72. We are conscious of the fact that the
legislative intent behind the introduction of
Section 438 CrPC is to safeguard the
individual's personal liberty and to protect him
from the possibility of being humiliated and from
being subjected to unnecessary police custody.
However, the court must also keep in view that
a criminal offence is not just an offence against
an individual, rather the larger societal interest
is at stake. Therefore, a delicate balance is
required to be established between the two
rights—safeguarding the personal liberty of an
individual and the societal interest. It cannot be
said that refusal to grant anticipatory bail would
amount to denial of the rights conferred upon
the appellant under Article 21 of the Constitution
of India.

73. to 76………………………………
SLP (CRL.) No.13956 of 2023 Page 39 of 55



77. After referring to Siddharam Satlingappa
Mhetre [ Siddharam Satlingappa Mhetre v. State
of Maharashtra , (2011) 1 SCC 694 : (2011) 1
SCC (Cri) 514] and other judgments and
observing that anticipatory bail can be granted
only in exceptional circumstances, in Jai
Prakash Singh v. State of Bihar [ Jai Prakash
Singh v. State of Bihar , (2012) 4 SCC 379 :
(2012) 2 SCC (Cri) 468] , the Supreme Court
held as under: (SCC p. 386, para 19)
“ 19 . Parameters for grant of anticipatory bail
in a serious offence are required to be
satisfied and further while granting such
relief, the court must record the reasons
therefor. Anticipatory bail can be granted
only in exceptional circumstances where the
court is prima facie of the view that the
applicant has falsely been enroped in the
crime and would not misuse his liberty.
(See D.K. Ganesh Babu v. P.T.
Manokaran [ D.K. Ganesh Babu v. P.T.
Manokaran , (2007) 4 SCC 434: (2007) 2
SCC (Cri) 345], State of
Maharashtra v. Mohd. Sajid Husain Mohd.
S. Husain [ State of Maharashtra v. Mohd.
Sajid Husain Mohd. S. Husain , (2008) 1 SCC
213: (2008) 1 SCC (Cri) 176] and Union of
India v. Padam Narain Aggarwal [ Union of
India v. Padam Narain Aggarwal , (2008) 13
SCC 305: (2009) 1 SCC (Cri) 1].)”

Economic offences
78. Power under Section 438 CrPC being an
extraordinary remedy, has to be exercised
sparingly; more so, in cases of economic
offences. Economic offences stand as a
SLP (CRL.) No.13956 of 2023 Page 40 of 55


different class as they affect the economic fabric
of the society. In Directorate of
Enforcement v. Ashok Kumar Jain [ Directorate
of Enforcement v. Ashok Kumar Jain , (1998) 2
SCC 105: 1998 SCC (Cri) 510], it was held that
in economic offences, the accused is not
entitled to anticipatory bail.”


19. In Y.S. Jagan Mohan Reddy vs. Central Bureau of
3
Investigation, it was observed as under: -
“ 34. Economic offences constitute a class apart
and need to be visited with a different approach
in the matter of bail. The economic offences
having deep-rooted conspiracies and involving
huge loss of public funds need to be viewed
seriously and considered as grave offences
affecting the economy of the country as a whole
and thereby posing serious threat to the
financial health of the country.

35. While granting bail, the court has to keep in
mind the nature of accusations, the nature of
evidence in support thereof, the severity of the
punishment which conviction will entail, the
character of the accused, circumstances which
are peculiar to the accused, reasonable
possibility of securing the presence of the
accused at the trial, reasonable apprehension of
the witnesses being tampered with, the larger
interests of the public/State and other similar
considerations.”


3
(2013) 7 SCC 439
SLP (CRL.) No.13956 of 2023 Page 41 of 55


20. In Nimmagadda Prasad vs. Central Bureau of
4
Investigation, it was observed as under: -
“ 23. Unfortunately, in the last few years, the
country has been seeing an alarming rise in
white-collar crimes, which has affected the fibre
of the country's economic structure.
Incontrovertibly, economic offences have
serious repercussions on the development of
the country as a whole. In State of
Gujarat v. Mohanlal Jitamalji Porwal [(1987) 2
SCC 364: 1987 SCC (Cri) 364] this Court, while
considering a request of the prosecution for
adducing additional evidence, inter alia,
observed as under: (SCC p. 371, para 5)
“ 5. … The entire community is aggrieved if
the economic offenders who ruin the
economy of the State are not brought to
book. A murder may be committed in the
heat of moment upon passions being
aroused. An economic offence is committed
with cool calculation and deliberate design
with an eye on personal profit regardless of
the consequence to the community. A
disregard for the interest of the community
can be manifested only at the cost of
forfeiting the trust and faith of the community
in the system to administer justice in an
even-handed manner without fear of
criticism from the quarters which view white-
collar crimes with a permissive eye
unmindful of the damage done to the
national economy and national interest.””



4
(2013) 7 SCC 466
SLP (CRL.) No.13956 of 2023 Page 42 of 55


21. Recently in Srikant Upadhyay and Others vs. State
5
of Bihar and Another, a very pertinent
observations have been made with regard to the
powers of the Court to grant anticipatory bail under
Section 438 of CrPC. It has been observed that -
“ 9 . It is thus obvious from the catena of
decisions dealing with bail that even while
clarifying that arrest should be the last option
and it should be restricted to cases where arrest
is imperative in the facts and circumstances of a
case, the consistent view is that the grant of
anticipatory bail shall be restricted to
exceptional circumstances. In other words, the
position is that the power to grant anticipatory
bail under Section 438, Cr. PC is an exceptional
power and should be exercised only in
exceptional cases and not as a matter of course.
Its object is to ensure that a person should not
be harassed or humiliated in order to satisfy the
grudge or personal vendetta of the complainant.
(See the decision of this Court in HDFC Bank
Ltd. v. J.J.Mannan & Anr.4).

10. When a Court grants anticipatory bail what
it actually does is only to make an order that in
the event of arrest, the arrestee shall be
released on bail, subject to the terms and
conditions. Taking note of the fact the said
power is to be exercised in exceptional
circumstances and that it may cause some
hinderance to the normal flow of investigation
method when called upon to exercise the power

5
(2024) SCC OnLine SC 282
SLP (CRL.) No.13956 of 2023 Page 43 of 55


under Section 438, Cr.PC, courts must keep
reminded of the position that law aides only the
abiding and certainly not its resistant. By saying
so, we mean that a person, having subjected to
investigation on a serious offence and upon
making out a case, is included in a charge sheet
or even after filing of a refer report, later, in
accordance with law, the Court issues a
summons to a person, he is bound to submit
himself to the authority of law. It only means that
though he will still be at liberty, rather, in his
right, to take recourse to the legal remedies
available only in accordance with law, but not in
its defiance. We will dilate this discussion with
reference to the factual matrix of this case.
However, we think that before dealing with the
same, a small deviation to have a glance at the
scope and application of the provisions under
Section 82, Cr.PC will not be inappropriate.

11 to 24… ………………………

25. We have already held that the power to
grant anticipatory bail is an extraordinary power.
Though in many cases it was held that bail is
said to be a rule, it cannot, by any stretch of
imagination, be said that anticipatory bail is the
rule. It cannot be the rule and the question of its
grant should be left to the cautious and judicious
discretion by the Court depending on the facts
and circumstances of each case. While called
upon to exercise the said power, the Court
concerned has to be very cautious as the grant
of interim protection or protection to the accused
in serious cases may lead to miscarriage of
justice and may hamper the investigation to a
great extent as it may sometimes lead to
SLP (CRL.) No.13956 of 2023 Page 44 of 55


tampering or distraction of the evidence. We
shall not be understood to have held that the
Court shall not pass an interim protection
pending consideration of such application as the
Section is destined to safeguard the freedom of
an individual against unwarranted arrest and we
say that such orders shall be passed in
eminently fit cases. At any rate, when warrant of
arrest or proclamation is issued, the applicant is
not entitled to invoke the extraordinary power.
Certainly, this will not deprive the power of the
Court to grant pre-arrest bail in extreme,
exceptional cases in the interest of justice. But
then, person(s) continuously, defying orders
and keep absconding is not entitled to such
grant.”


22. In Prem Shankar Prasad vs. State of Bihar and
6
Another, this Court, disapproving the Order passed
by the High Court granting anticipatory bail to the
accused though the proceedings under Section
82/83 CrPC were initiated, observed as under: -
“ 10…………………………………
10.1……………………………….
10.2. Despite the above observations on merits
and despite the fact that it was brought to the
notice of the High Court that Respondent 2-
accused is absconding and even the
proceedings under Sections 82/83CrPC have
been initiated as far back as on 10-1-2019, the
High Court has just ignored the aforesaid

6
(2022) 14 SCC 516
SLP (CRL.) No.13956 of 2023 Page 45 of 55


relevant aspects and has granted anticipatory
bail to Respondent 2-accused by observing that
the nature of accusation is arising out of a
business transaction. The specific allegations of
cheating, etc. which came to be considered by
the learned Additional Sessions Judge has not
at all been considered by the High Court. Even
the High Court has just ignored the factum of
initiation of proceedings under Sections
82/83CrPC by simply observing that “be that as
it may”. The aforesaid relevant aspect on grant
of anticipatory bail ought not to have been
ignored by the High Court and ought to have
been considered by the High Court very
seriously and not casually.

10.3……………………………….

11. Thus, the High Court has committed an error
in granting anticipatory bail to Respondent 2-
accused ignoring the proceedings under
Sections 82/83 CrPC.”

ANALYSIS:
23. In view of the above settled legal position, it is no
more res integra that economic offences constitute a
class apart, as they have deep rooted conspiracies
involving huge loss of public funds, and therefore
such offences need to be viewed seriously. They are
considered as grave and serious offences affecting
the economy of the country as a whole and thereby
SLP (CRL.) No.13956 of 2023 Page 46 of 55


posing serious threats to the financial health of the
country. The law aids only the abiding and certainly
not its resistants. When after the investigation, a
chargesheet is submitted in the court, or in a
complaint case, summons or warrant is issued to the
accused, he is bound to submit himself to the
authority of law. If he is creating hindrances in the
execution of warrants or is concealing himself and
does not submit to the authority of law, he must not
be granted the privilege of anticipatory bail,
particularly when the Court taking cognizance has
found him prima facie involved in serious economic
offences or heinous offences. In such cases when
the court has reason to believe that the person
against whom the warrant has been issued has
absconded or is concealing himself so that warrant
could not be executed, the concerned court would be
perfectly justified in initiating the proclamation
proceedings against him under Section 82 Cr.P.C.
The High Courts should also consider the factum of
issuance of non-bailable warrants and initiation of
proclamation proceedings seriously and not casually,
while considering the anticipatory bail application of
such accused.
SLP (CRL.) No.13956 of 2023 Page 47 of 55


24. In the instant case, as stated earlier, the Ministry of
Corporate Affairs had directed the Appellant – SFIO
to investigate into the affairs of 125 companies and
on the completion of the investigation, the SFIO had
lodged the private complaint before the Special Court
against the accused including the respondents,
alleging various serious offences under the
Companies Act including Section 447 thereof and the
offences under the IPC. It is pertinent to note that as
per sub-section (6) of Section 212 the offence
covered under Section 447 of the Companies Act has
been made cognizable and the person accused of
the said offence is not entitled to be released on bail
or on his bond, unless twin conditions mentioned
therein are satisfied. The twin conditions are: - (i) that
a Public Prosecutor should be given an opportunity
to oppose the application for such release; and (ii)
where the Public Prosecutor opposes the application,
the Court is satisfied that there are reasonable
grounds for believing that he is not guilty of such
offence and that he is not likely to commit any offence
while on bail. These twin conditions are mandatory in
nature. A three Judge Bench in case of Vijay
Madanlal Choudhary and Others vs. Union of
SLP (CRL.) No.13956 of 2023 Page 48 of 55


7
India and Others, while examining the validity of
similar conditions contained in Section 45 of the
PMLA Act, had held that the restrictive conditions of
bail are mandatory in nature. They are applicable
even in the anticipatory bail proceedings.
25. In a recent case in Union of India through
8
Assistant Director vs. Kanhaiya Prasad, it has
been observed by this Court that cryptic orders
granting bail without adverting to the facts or the
consideration of such restrictive conditions with
regard to the bail are perverse and liable to be set
aside.
26. Coming back to the facts of the present case, though
the Special Court had taken cognizance of the
alleged offences under the Companies Act including
under Section 447 and other offences under the IPC,
and even though the non-bailable warrants were
issued from time to time against the Respondents,
and even though the proclamation proceedings were
initiated against them, the High Court has passed the
impugned orders. The said Orders have been passed
in utter disregard of the mandatory conditions

7
(2023) 12 SCC 1

8
2025 SCC Online SC 306
SLP (CRL.) No.13956 of 2023 Page 49 of 55


contained in Section 212(6) of the Companies Act,
and also ignoring the conduct of the respondents-
accused. Such orders being in the teeth of the legal
position settled by this Court, as also in the teeth of
the Section 212(6) of Companies Act, would fall into
the category of perverse orders and therefore
untenable at law.
27. In none of the impugned orders, the High Court has
bothered to look into the proceedings conducted, and
the detailed orders passed by the Special Court for
securing the presence of the Respondents –
Accused. It cannot be gainsaid that the judicial time
of every court, even of Magistrate’s Court is as
precious and valuable as that of the High Courts and
the Supreme Court. The accused are duty bound to
cooperate the trial courts in proceeding further with
the cases and bound to remain present in the Court
as and when required by the Court. Not allowing the
Courts to proceed further with the cases by avoiding
execution of summons or warrants, disobeying the
orders of the Court, and trying to delay the
proceedings by hook or crook, would certainly
amount to interfering with and causing obstruction in
the administration of justice. As held in Srikant
SLP (CRL.) No.13956 of 2023 Page 50 of 55


Upadhay’s case (supra), when warrant of arrest is
issued or proclamation proceedings are initiated, the
accused would not be entitled to invoke, except in
exceptional cases, the extraordinary power of the
court to grant anticipatory bail. Granting anticipatory
bail is certainly not the rule. The respondents-
accused, who have continuously avoided to follow
the due process of law, by avoiding attendance in the
Court, by concealing themselves and thereby
attempting to derail the proceedings, would not be
entitled to the anticipatory bail. If the Rule of Law is
to prevail in the society, every person would have to
abide by the law, respect the law and follow the due
process of law.
28. A faint attempt was made by the learned counsels for
the Respondents to rely upon the decision in case of
Tarsem Lal vs. Directorate of Enforcement
9
Jalandhar Zonal Office, to submit that if the
respondents were not arrested by the SFIO during
the course of investigation till the filing of the
complaint, the Special Court while taking cognizance
of the alleged offences should have issued a

9
(2024) 7 SCC 61

SLP (CRL.) No.13956 of 2023 Page 51 of 55


summons only to the respondents-accused and not a
warrant. The said submission is bereft of merits. As
discussed earlier, as per Section 204, Cr.P.C. in a
complaint case, which appears to be a warrant case,
the Court taking cognizance of the offence, has the
discretion to issue warrant or summons as it thinks
fit, for causing the accused to be brought or to appear
before it. As held by three Judge Bench of this Court
in case of Inder Mohan Goswami and Another
(supra), the Court is empowered to issue even a non-
bailable warrant to bring a person to the Court, when
it is reasonable for the Court to believe that the
person will not voluntarily appear in the Court or the
police authorities are unable to find the person to
serve him with a summons. There cannot be a strait
jacket formula, as sought to be submitted by the
learned advocates for the Respondents that the
Court must first issue a summons even in case of a
warrant case, irrespective of the gravity or
seriousness of the offence. As well settled by now,
whether the attendance of the accused can be best
secured by issuing a bailable warrant or non-bailable
warrant, would be a matter, which entirely rests at the
SLP (CRL.) No.13956 of 2023 Page 52 of 55


10
discretion of the concerned Court. Although the
discretion should be exercised judiciously, diverse
considerations such as the nature and seriousness of
the offence, the circumstances peculiar to the
accused, possibility of his concealing or absconding,
larger interest of public and state etc. also must be
seriously considered by the court.
29. In the instant case, the Special Court considering the
seriousness of the alleged offences had initially
issued bailable warrants, however, the Respondents
kept on avoiding the execution of such warrants and
did not appear before the Special Court though fully
aware about the pendency of the complaint
proceedings against them. The Special Court
therefore had to pass detailed orders from time to
time for the issuance of non-bailable warrants, and
thereafter had also initiated the Proclamation
proceedings under Section 82 of the Code, for
requiring respondents to appear before it. The High
Court however without paying any heed to the
proceedings conducted by the Special Court against
the respondents, and ignoring the well settled legal
position, granted anticipatory bail to the Respondents

10
State of U.P. vs. Poosu (1976) 3 SCC 1 (Para-49)
SLP (CRL.) No.13956 of 2023 Page 53 of 55


vide the impugned orders. As discussed earlier, the
said Orders being perverse and untenable at law,
cannot be allowed to be sustained, and deserve to be
set aside.
30. In that view of the matter, the respective impugned
orders dated 29.03.2023 and 20.04.2023 passed by
the High Court granting anticipatory bail to the
concerned accused who are the respondents in
these Appeals, are set aside. The respondents-
accused are directed to surrender themselves before
the Special Court in one week from today. It is
needless to mention that their bail applications as
and when filed by them shall be decided by the
Special Court in accordance with law. We clarify that
we have not expressed any opinion on the merits of
the case.
31. The Appeals arising out of SLP (Crl.) No.13956/2023,
SLP (Crl.) No.14033/2023, SLP (Crl.) No.
15318/2023, SLP (Crl.) No.15322/2023, SLP (Crl.)
No.13960/2023, SLP (Crl.) No.15333/2023, SLP
(Crl.) No.14128/2023, SLP (Crl.) No.13965/2023,
SLP (Crl.) No.13975/2023, SLP (Crl.) No.
13983/2023, SLP (Crl.) No.13976/2023, SLP (Crl.)
No. 13971/2023, SLP (Crl.) No. 15311/2023 and SLP
SLP (CRL.) No.13956 of 2023 Page 54 of 55


(Crl.) No.13978/2023 are allowed. However, the
Appeals arising out of SLP (Crl.) No.13973/2023
(Akshat Singh) & SLP (Crl.) No.13974/2023 (Naveen
Kumar) and SLP (Crl.) No.15326/2023 (Mahesh Dutt
Sharma) are dismissed accordingly.



………………………………J.
[BELA M. TRIVEDI]



.…………………………..….J.
[PRASANNA B. VARALE]

NEW DELHI;
th
APRIL 09 , 2025
SLP (CRL.) No.13956 of 2023 Page 55 of 55