Full Judgment Text
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO……………OF 2023
(Arising out of SLP (Crl.) No.376 OF 2023)
MAHDOOM BAVA … APPELLANT(S)
VERSUS
CENTRAL BUREAU OF INVESTIGATION … RESPONDENT(S)
With
CRIMINAL APPEAL NO……………….OF 2023
(Arising out of SLP (Crl.) No.1534 of 2023)
CRIMINAL APPEAL NO……………….OF 2023
(Arising out of SLP (Crl.) No.3002 of 2023)
CRIMINAL APPEAL NO……………….OF 2023
(Arising out of SLP (Crl.) No.3027 of 2023)
J U D G M E N T
V. RAMASUBRAMANIAN, J.
Leave granted.
2. Accused Nos. 2, 3, 10 and 14 in FIR No. RC 219 2019 E0006,
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investigated by the Central Bureau of Investigation , have come up
with the above appeals challenging the orders of the High Court of
Signature Not Verified
Digitally signed by
NIRMALA NEGI
Date: 2023.03.20
17:16:43 IST
Reason:
Judicature at Allahabad rejecting their applications for the grant of
1 For short, “ CBI”
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anticipatory bail.
3.
We have heard learned counsel for the appellants and Shri
Vikramjeet Banerjee, learned Additional Solicitor General, appearing
for the respondent-CBI.
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4. The First Information Report in this case was registered on
29.06.2019 at the instance of the Corporation Bank, for the alleged
offences under Sections 420, 467, 468, 471 read with Section 120B
IPC and Section 13(2) read with Section 13(1)(d) of the Prevention of
Corruption Act, 1988. The gravamen of the allegations contained in
the FIR was, that a Company by name M/s NaftoGaz India Pvt. Ltd.,
secured certain credit facilities from a consortium of banks led by the
State Bank of India; that the facilities were secured by the creation of a
charge on movable properties and a mortgage of certain immovable
properties; that the account of the said Company was operated
properly till 27.07.2012, but started showing signs of sickness
thereafter; that the account was classified as NPA on 22.11.2012, with
an outstanding book-balance of more than Rs.92 crores; that the
account was classified by the Bank as fraudulent one on 03.02.2015;
that one of the properties mortgaged to the Bank, by third party
guarantors was later found to be involved in litigation, on account of
the defective title of the guarantors; that another property was found
2 For short, “ FIR”
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to have been grossly over-valued; that the Company had connived and
conspired with advocates and valuers hired by the consortium of
banks; and that therefore the promoters/directors of the Company, the
guarantors as well as those involved in the sanction of the loan were
guilty of the offences complained.
5. Though the FIR was lodged on 29.06.2019, none of the accused
was ever taken into custody by the respondent-CBI. It appears that all
the accused joined the investigation and cooperated with the
respondent. Therefore, after the completion of investigation, CBI filed
the final report on 31.12.2021.
6. After the CBI filed the final report on 31.12.2021, the Special
Court issued summons for the appearance of the accused on
07.03.2022. Therefore, apprehending arrest, the appellants moved
applications for anticipatory bail. The applications were rejected by the
Special Court and the rejection order was also confirmed by the High
Court. Therefore, the appellants are before this Court.
7. Accused No.2, namely Shri Mahdoom Bava, who is the appellant
in one of these appeals is stated to be the promotor/director of the
Company and he is alleged to be the kingpin. Accused No.3, namely
Shri Deepak Gupta is a third party who has allegedly given his
personal guarantee. The immovable property to which Shri Deepak
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Gupta claimed title had been offered as security. According to the
prosecution, Shri Deepak Gupta claimed title to the property on the
basis of fictitious documents and that he had also already sold away
some portions of the property even before creating a mortgage.
8. Shri Akash Gupta, arrayed as Accused No.10 is alleged to have
created bogus bills and fake lorry receipts, in connivance with Accused
No.2, to enable the Company to have the bills discounted. Accused
No.14, namely Shri Yatish Sharma is alleged to have operated the
account of one M/s Shri Radhey Traders, to whom a huge amount had
been transferred from the account of another firm by name Aggarwal
Traders. It was alleged that the mobile phones whose numbers were
mentioned in the invoices of M/s Aggarwal Traders, were being used
by Shri Yatish Sharma.
9.
On the strength of the aforesaid allegations, which are certainly
serious in nature, the prayer of the appellants for anticipatory bail is
opposed vehemently by the learned Additional Solicitor General. But
in our considered view there are at least three factors which tilt the
balance in favour of the appellants herein. They are:-
(i)
Admittedly, the CBI did not require the custodial
interrogation of the appellants during the period of
investigation from 29.06.2019 (date of filing of FIR) till
31.12.2021 (date of filing of the final report). Therefore, it is
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difficult to accept the contention that at this stage the
custody of the appellants may be required;
(ii)
In the reply/counter filed before the High Court, the CBI
had taken a categorical stand that the Court had merely
issued summons and not warrant for the appearance of the
accused. In the case of Shri Deepak Gupta, CBI had taken a
stand before the Special Court that “ the presence of the
accused is not required for the investigation but it is certainly
required for trial” and that therefore he needs to be present.
Therefore, all that the CBI wanted was the presence of the
accused before the Trial Court to face trial. In such
circumstances, to oppose the anticipatory bail request at
this stage may not be proper; and
(iii)
All transactions out of which the complaint had arisen,
seem to have taken place during the period 2009-2010 to
2012-2013 and all are borne out by records. When the
primary focus is on documentary evidence, we fail to
understand as to why the appellants should now be
arrested.
10. More importantly, the appellants apprehend arrest, not at the
behest of the CBI but at the behest of the Trial Court. This is for the
reason that in some parts of the country, there seems to be a practice
followed by Courts to remand the accused to custody, the moment
they appear in response to the summoning order. The correctness of
such a practice has to be tested in an appropriate case. Suffice for the
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present to note that it is not the CBI which is seeking their custody,
but the appellants apprehend that they may be remanded to custody
by the Trial Court and this is why they seek protection. We must keep
this in mind while deciding the fate of these appeals.
11. In the case of the prime accused, namely Shri Mahdoom Bava, an
additional argument advanced by the learned Additional Solicitor
General is that he was involved in eleven other cases. But the
tabulation of those eleven cases would show that seven out of those
eleven cases are complaints under Section 138 of the Negotiable
Instruments Act, 1881 and three out of those seven cases are actually
inter-parties and not at the instance of the Bank. The eighth case is a
complaint filed by the Income Tax Officer and it relates to the non-
payment of TDS amount. The remaining three cases are the cases filed
by CBI, one of which is the subject matter out of which the above
appeals arise.
12. In view of the aforesaid, we are of the considered view that the
appellants are entitled to be released on bail, in the event of the Court
choosing to remand them to custody, when they appear in response to
the summoning order. Therefore, the appeals are allowed and the
appellants are directed to be released on bail, in the event of their
arrest, subject to such terms and conditions as may be imposed by the
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Special Court, including the condition for the surrender of the
passport, if any.
Pending application(s), if any, stands disposed of accordingly.
…………………………….J.
(V. Ramasubramanian)
…………………………….J.
(Pankaj Mithal)
New Delhi
March 20, 2023
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ITEM NO.1501 COURT NO.15 SECTION II
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (Crl.) No(s). 376/2023
(Arising out of impugned final judgment and order dated 14-12-2022
in CRMABA No. 4251/2022 passed by the High Court Of Judicature At
Allahabad)
MAHDOOM BAVA Petitioner(s)
VERSUS
CENTRAL BUREAU OF INVESTIGATION Respondent(s)
(IA No. 4828/2023 - EXEMPTION FROM FILING C/C OF THE IMPUGNED
JUDGMENT
IA No. 7526/2023 - PERMISSION TO FILE ADDITIONAL
DOCUMENTS/FACTS/ANNEXURES
IA No. 7530/2023 - PERMISSION TO FILE ADDITIONAL
DOCUMENTS/FACTS/ANNEXURES)
WITH
SLP(Crl) No. 1534/2023 (II)
(IA No. 23014/2023 - PERMISSION TO FILE ADDITIONAL
DOCUMENTS/FACTS/ANNEXURES)
SLP(Crl) No. 3002/2023 (II)
(FOR ADMISSION and I.R. and IA No.46726/2023-EXEMPTION FROM FILING
C/C OF THE IMPUGNED JUDGMENT)
SLP(Crl) No. 3027/2023 (II)
(..FOR ADMISSION and I.R. and IA No.47085/2023-EXEMPTION FROM
FILING C/C OF THE IMPUGNED JUDGMENT)
Date : 20-03-2023 These matters were called on for pronouncement of
judgment today.
For Petitioner(s) Mr. Nagendra Singh, Adv.
Mr. Ashish Pandey, Adv.
Mr. Akash, Adv.
Mr. Naman Raj Singh, Adv.
Mr. Akash Chaudhary, Adv.
Mr. Ashutosh Bhardwaj, Adv.
Mr. Prateek Rai, Adv.
Mr. Subham Saxena, Adv.
Mr. Vishwa Pal Singh, AOR
Mr. Anshuman Sinha, Adv.
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Mr. Vijay Kumar Pandey, Adv.
Mr. Vinay Prakash, Adv.
Mr. Niteen Kumar Sinha, AOR
Mr. Udayan Sinha, Adv.
Mr. Hemant Mour, Adv.
Mr. Vivek Sharma, AOR
Mr. Sidharth Khattar, Adv.
Mr. Viresh B. Saharya, AOR
Mr. Akshat Agarwal, Adv.
Mr. Akash Jain, Adv.
For Respondent(s) Mr. Arvind Kumar Sharma, AOR
Hon’ble Mr. Justice V. Ramasubramanian pronounced the judgment
of the Bench comprising His Lordship and Hon’ble Mr. Justice Pankaj
Mithal in terms of the Non-Reportable Judgment.
Leave granted.
The appeals are allowed in terms of the signed non-reportable
judgment. The operative portion of the judgment is as follows:
“Therefore, the appeals are allowed and the
appellants are directed to be released on bail, in
the event of their arrest, subject to such terms and
conditions as may be imposed by the Special Court,
including the condition for the surrender of the
passport, if any.”
Pending application(s), if any, shall stand disposed of.
(RADHA SHARMA) (RENU BALA GAMBHIR)
COURT MASTER (SH) COURT MASTER (NSH)
(SIGNED NON-REPORTABLE JUDGMENT IS PLACED ON THE FILE)
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