Meenakshi I. Mehta, J
1. The petitioner herein seeks the relief of regular bail in the Criminal Complaint Case bearing No.3 dated 18.05.2019 titled as “SFIO vs. Adarsh
Build Estate etc.â€, as filed under Sections 120-B, 406, 417, 418, 420 & 477A IPC and Sections 211(7), 227 & 628 of the Companies Act, 1956 as
well as Sections 74(3), 147, 447 & 447 of the Companies Act, 2013 (for short “the Act of 2013â€) and pending in the Court of learned Sessions
Judge, Gurugram.
2. Shorn and short of unnecessary details, the facts, culminating in the filing of the subject Complaint Case, are that in pursuance of the orders issued
by the Ministry of Corporate Affairs (for short “the MCAâ€) on 20.06.2018 and 25.02.2019 in the public interest, the investigation was conducted
into the affairs of Adarsh Group of Companies and LLPs (for short “AGC&Lâ€) and on completion of the same, the respondent submitted its
report to the MCA. On the basis of this report, the above-said Complaint Case has been filed in the Special Court with the allegations that the
petitioner is one of the Directors of Adarsh Credit Co-operative Society Limited (here-in-after to be referred to as “ACCSLâ€) which has been
revealed to be the fund mobilization arm of AGC&L and the said Group comprises of 126 Companies, managed and controlled by her
(petitioner’s) father, Mukesh Modi, and his family members including her and she is found to be involved in siphoning-off the funds of ACCSL as
she was one of the Directors of several companies of AGC&L which had secured the loans from ACCSL fraudulently and illegally, by way of
falsification of their financials whereas only the members of ACCSL were eligible to secure such loans and thus, she committed fraud by swindling
away the hard-earned money of the members/depositors of ACCSL, mainly belonging to the low and middle income groups. Vide the order Annexure
P-2 as passed on 03.06.2019, the Special Court has taken the cognizance against the petitioner under the provisions, as enumerated in the opening
para of this order.
3. The respondent has already filed its detailed written-reply in the instant petition.
4. I have heard learned Senior counsel for the petitioner as well as learned Additional Solicitor General of India with learned Senior Panel Counsel
(UOI) for the respondent in the present petition and have also perused the record thoroughly.
5. Learned Senior counsel for the petitioner has contended that throughout during the investigation proceedings, the respondent did not arrest the
petitioner and rather, she was arrested in connection with the above-said Complaint Case in pursuance of the order Annexure P-2 as passed by the
Court below for taking the cognizance against her whereas in the afore-discussed eventuality, she was entitled to be released on bail on her putting in
appearance/being produced before the trial Court. To buttress his contentions, he has placed reliance upon the observations made by the Apex Court
in Aman Preet Singh vs C.B.I. Through Director, Criminal Appeal No.929 of 2021 (Arising out of SLP (Crl.) No.5234/2021) Decided on 02.09.2021
and Siddharth vs The State of Uttar Pradesh & Anr, Criminal Appeal No.838 of 2021 (Arising out of SLP (Crl.) No.5442/2021 Decided on
16.08.2021.
6. Per-contra, learned Additional Solicitor General of India and learned Senior Panel counsel (UOI) have argued that the grant of the relief of bail in
the matter/case involving the offence under Section 447 of the Act of 2013, is governed by the provisions contained in Section 212(6) of the said Act
which require the fulfilment of the twin conditions before extending such relief to the offender and the petitioner cannot be considered to be eligible for
the said relief in view of the magnitude of the fraudulent transactions involved in the present matter which, in themselves, speak volumes of her active
participation in the crime.
7. A perusal of the order Annexure P-2 passed by learned Sessions Judge Gurugram reveals that the petitioner, along-with her co-accused, has been
summoned to face trial under various provisions, including Section 447 of the Act of 2013 which attracts the provisions contained in Section 212(6) of
the said Act. In the judgment recently rendered in Satender Kumar Antil Vs. Central Bureau of Investigation & Anr, Special Leave to Appeal (Crl.)
No.(s) 5191/2021 Decided on 07.10.2021, the Apex Court has laid down the guidelines for grant of bail in the eventuality where the offender is not
arrested during the investigation and co-operates throughout in the said proceedings, while categorizing the offences and has placed the offences
punishable under the Special Acts containing the stringent provisions for bail like NDPS (Section 37), PMLA (Section 45), UAPA [Section 43-D(5)]
and Companies Act [Section 212(6)] etc. in Category 'C' and has observed that “on appearance of the accused in the Court pursuant to the
process issued in the cases falling under the said Category, the bail application is to be decided on merits with the additional condition of compliance of
the provisions of bail contained in the Special Actâ€. These observations clinch the entire matter and in the light of the same, the observations, as
made by Hon'ble Supreme Court earlier in Aman Preet (supra) and Siddharth (supra), are of no help to the petitioner to seek the relief of regular bail.
8. Learned Senior counsel for the petitioner has further conteneded that even if the petitioner is alleged to have committed the offence under Section
447 of the Act of 2013 besides other offences, even then she, being a female, deserves the relief of bail by virtue of the proviso appended to Section
212(6) of the said Act.
9. However, learned Additional Solicitor General of India and learned Senior Panel counsel (UOI) have argued that the said proviso does not, in itself,
entitle a female offender to the relief of bail and keeping in view the fact that the petitioner, along-with her co-accused, has duped the bona-
fide/genuine depositors of ACCSL of their life-time earnings, the present petition be dismissed.
10. The offence under Section 447 of the Act of 2013 invites the rigour of Section 212(6) of the Act of 2013 for the purpose of grant of bail which
provides as under:-
“(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 unlessâ€
(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 sub-section except upon a complaint in writing made
byâ€
(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.â€
From the bare reading of the afore-said provisions, it becomes explicit that the word used in the above-quoted proviso is “may†which itself leads
to an irresistible inference qua the intent of the Legislature to vest the Court concerned with the discretion to extend or deny the relief of bail to an
offender of the above-described categories and the same does not, ipso-facto, entitles any such offender to the said relief.
11. Further, it has categorically been mentioned in Paras (I) and (II) in the written-reply (on merits) that during the investigation, it was found that
ACCSL is a Credit Co-operative Society registered under the Multi-State Co-operative Societies Act, 2002 and is the fund mobilization arm of
AGC&L and has 800 plus branches, 20 lacs members, mostly belonging to low and middle income group, 3.7 lacs Advisors and an outstanding deposit
of Rs.9,253 crore as on 31.05.2018. It has also been mentioned in Para No.III therein that 70 Companies out of 126 Companies Under Investigation
(CUIs), had secured loans to the tune of Rs.1700 crore from ACCSL fraudulently and illegally and a sum of Rs.4120 crore was outstanding balance
against the loan in these CUIs, as on 31.03.2018. In Paras No. (IV),
(V) & (VI), it has further been specifically mentioned that the petitioner was one of the Directors and also a signatory to the loan applications
pertaining to some of the said loanee Companies and the loan had been sanctioned in favour of these Companies without examining or verifying the
documents and without adhering to the prescribed procedure and Rules for the same. In these circumstances, this Court does not find any cogent
ground to exercise the discretion, as provided in the said proviso, in favour of the petitioner or to record its satisfaction qua the fulfilment of the twin
pre-requisites, as envisaged under Section 212(6) of the Act of 2013, so as to extend the relief of bail to her.
12. Learned Senior counsel for the petitioner has also contended that the petitioner has been granted the relief of interim bail by the Rajasthan High
Court in another case vide the order dated 20.12.2019 (Annexure P-3) which has been extended vide the order dated 25.08.2021 as passed in D.B
Civil Writ Petition No.4134 of 2021 titled as “Rahul Modi and Others vs. State of Rajasthan through PP†and even, her co-accused Vijay Shukla
has also been granted the interim protection by the Apex Court in “Vijay Shukla vs. Serious Fraud Investigation Office†Petition(s) for Special
Leave to Appeal (Crl.) No.(s) 6338 of 2021 and moreover, she (petitioner) has been in custody in the subject Complaint Case since 01.07.2019 and in
these circumstances, she deserves the relief of regular bail. He has placed reliance upon Union of India vs. K.A. Najeeb (2021)3 Supreme Court
Cases 713; Shri Gurbaksh Singh Sibbia and Others vs. State of Punjab (1980) 2 Supreme Court Cases 565 and Sanjay Chandra vs. Central Bureau of
Investigation (2012) 1 Supreme Court Cases 40, in support of his contentions.
13. However, the afore-raised contentions do not hold much water because vide the above-said order Annexure P-3, the petitioner was granted the
relief of interim bail only in some other case pending before the Rajasthan High Court which has been extended vide the said order dated 25.08.2021
and therefore, these orders do not entitle her (petitioner) to seek the relief of regular bail in the present matter. Further, the above-named co-accused
of the petitioner, i.e Vijay Shukla, has also been granted the interim protection only and that too, in the circumstances when this Court had specifically
noted in the impugned judgment that he was not accused of having committed the offence under Section 447 of the Act of 2013 and was only a
signatory to the financials of the Company whereas the petitioner was one of the Directors in ACCSL as well as in some of the Companies comprised
in AGC&L and she has categorically been alleged to have committed the offence under Section 447 of the Act of 2013. Again, mere custody of the
petitioner since the said date, in itself, does not suffice at all to extend the relief of bail to her in the eventuality when Section 212(6) of the Act of 2013
is applicable to the present case as discussed earlier.
14. The observations made by Hon’ble Supreme Court in Union of India (supra), Shri Gurbaksh Singh Sibbia and Others (supra) and Sanjay
Chandra (supra) also do not come to the rescue of the petitioner to seek her release on bail because the facts and circumstances of the case in hand
are distinguishable from those of the cited above. In Union of India (supra), the Apex Court was dealing with the issue of “cancellation of bail†in
a matter involving Section 43-D(5) of the UAP Act and had, rather, observed that there was a vivid distinction between the parameters to be applied
while considering the bail application vis-Ã -vis those, applicable while deciding a petition for its cancellation and moreover, the respondent-accused
had been in custody in the said case for more than five years whereas the petitioner has moved this petition with a prayer for “grant of bail†and
she is in custody for the last about 2½ years. In Gurbaksh Singh Sibbia and Others (supra), the Apex Court had dealt with the relief of anticipatory
bail whereas the petitioner seeks the relief of regular bail in the present case which as mentioned above, attracts the provisions as contained in Section
212(6) of the Act of 2013. In Satish Chandra (supra) also, the offence under Section 447 and the provisions of Section 212(6) of the said Act were not
involved whereas it is so in this case.
15. As a sequel to the fore-going discussion, it follows that the petitioner does not deserve the relief of regular bail and the petition in hand, being sans
any merit, deserves dismissal. Resultantly, the same stands dismissed accordingly.
