Back
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Revati Mohite Dere, J.
Hari Sankaran - Appellant
Versus
Serious Fraud Investigation Office - Respondent
Criminal Application No. 507 of 2021
Decided On : 19-04-2022
Criminal Procedure Code - Quashing of Remand Orders - Sec. 167, Sec. 309 - The court held that the detention/custody of the applicant was illegal, as no cognizance of the complaint filed by the SFIO had been taken by the learned Special Judge. The court rejected the submission that remand under Sec. 309 of the Cr.P.C is possible only after the Court takes cognizance of the complaint, and concluded that the accused continues to remain in the custody of the Magistrate till such time as cognizance is taken by the court trying the offence, when the said court assumes custody of the accused for purposes of remand during the trial in terms of Sec. 309, CrPC.
Fact of the Case:
The applicant sought quashing of the remand orders passed by the Special Judge, Greater Bombay, after filing of the impugned complaint, on the premise that the Special Court had not taken cognizance of the complaint filed by the Serious Fraud Investigation Office ('the SFIO') and hence the detention/custody of the applicant was illegal. The applicant was arrested for the alleged offence punishable under Sec. 447 of the Companies Act, 2013 vis-a-vis IL&FS Financial Services Limited ('the IFIN'). The Division Bench of the Court quashed and set-aside the direction issuing sanction by the Ministry of Corporate Affairs under Sec. 212(14) of the Companies Act, and the consequential prosecution lodged by the SFIO. The applicant filed a writ petition seeking quashing of the said direction, the complaint and consequently, the prosecution lodged by the SFIO, on the premise that the MCA had not applied its mind whilst granting sanction. The applicant filed an application under Sec. 167(2) of the Cr.P.C before the Sessions Court and was granted interim bail. Being aggrieved by the said order granting interim bail, the SFIO filed an application seeking quashing and setting aside of the order passed by the Sessions Court granting interim bail. The Apex Court permitted the applicant to withdraw the SLP and granted liberty to the applicant to pursue appropriate remedies as available in law. Pursuant to the liberty granted by the Apex Court, the applicant filed the aforesaid application, seeking his release on the premise that his detention, post filing of charge-sheet was illegal, as no cognizance of the complaint has been taken by the learned Special Judge.
Finding of the Court:
The court found that the detention/custody of the applicant was illegal, as no cognizance of the complaint filed by the SFIO had been taken by the learned Special Judge. The court rejected the submission that remand under Sec. 309 of the Cr.P.C is possible only after the Court takes cognizance of the complaint, and concluded that the accused continues to remain in the custody of the Magistrate till such time as cognizance is taken by the court trying the offence, when the said court assumes custody of the accused for purposes of remand during the trial in terms of Sec. 309, CrPC.
Issues: The issues raised in the present application were whether the detention/custody of the applicant was illegal, since the Special Court had not taken cognizance of the complaint filed by the SFIO, even after filing of the complaint.
Ratio Decidendi: The court held that the accused continues to remain in the custody of the Magistrate till such time as cognizance is taken by the court trying the offence, when the said court assumes custody of the accused for purposes of remand during the trial in terms of Sec. 309, CrPC.
Final Decision: The application was dismissed with the observation that the trial Court is directed to decide the issue of cognizance as expeditiously as possible.
JUDGMENT
REVATI MOHITE DERE,J. - By this application preferred under Sec. 482 of the Code of Criminal Procedure ('Cr.P.C '), the applicant seeks quashing and setting aside of the remand orders passed by the learned Special Judge, Greater Bombay, after filing of the impugned complaint, on the premise that the Special Court had not taken cognizance of the complaint filed by the Serious Fraud Investigation Office ('the SFIO') and hence the detention/custody of the applicant was illegal. The applicant also seeks his release forthwith from the alleged illegal detention/custody on the aforesaid premise.
2. A few facts as are relevant to decide the aforesaid application are as under:-
The applicant was arrested by the respondent-SFIO on 1/4/2019, for the alleged offence punishable under Sec. 447 of the Companies Act, 2013 vis-a-vis IL&FS Financial Services Limited ('the IFIN'). The applicant, after his arrest, was remanded to custody under File No. SFIO/INV/Unit-V/1003/IL&FS/2018-2019. On 28/5/2019, the respondent-SFIO submitted a report to the Ministry of Corporate Affairs ('MCA ') against IFIN 's Directors (including the applicant) and auditors, running into more than 32000 pages. On 29/5/2019, MCA issued a sanction letter under Sec. 212(14) of the Companies Act, directing the respondent-SFIO to file its complaint before the Special Court against the applicant and others, by 30/5/2019. Pursuant to the said direction issued by the MCA, the respondent-SFIO filed a criminal complaint, being Criminal Complaint No.20/2019 before the Special Court on 30/5/2019. Being aggrieved by the direction issued by the MCA to file a criminal complaint against the applicant and others, the applicant filed a writ petition in this Court, being Writ Petition No.5263/2019 seeking quashing of the said direction, the complaint and consequently, the prosecution lodged by the respondent-SFIO, on the premise that the MCA had not applied its mind whilst granting sanction. Similar petitions were also filed by the other Directors and Auditors. The Division Bench of this Court (Coram: B. P. Dharmadhikari, CJ and Nitin R. Borkar, J.) quashed and set-aside the direction dtd. 29/5/2019, issuing sanction by the respondent No.1 -Union of India through Ministry of Corporate Affairs ('MCA ') under Sec. 212(14) of the Companies Act, to the respondent No.2 -SFIO as being unsustainable and consequential prosecution lodged by the respondent No.2 -SFIO vide Criminal Complaint No. 20/2019 on the file of Special Court (Companies Act) and Additional Sessions Judge, Greater Mumbai, was held to be not maintainable and the same was also quashed and set aside.
Whilst partly allowing the said petition, the Division Bench, in para 202 XVII of the said judgment observed that the respondent-SFIO had admitted that the Court had not taken cognizance of the report and in these facts, if cognizance is not taken, the Court may not have power to remand and as such the detention of the petitioner-Director may not be legal. The Court also observed that however, since in the said petition, they were not required to answer the said question of detention of the petitioner (applicant), the said issue was kept open for consideration and liberty was granted to the applicant to file appropriate proceedings for his release. It appears that pursuant to the liberty granted by this Court vide order dtd. 21/4/2020, the applicant filed an application under Sec. 167(2) of the Cr.P.C before the Sessions Court and the learned Sessions Judge vide order dtd. 28/4/2020, was pleased to grant interim bail to the applicant.
Being aggrieved by the said order granting interim bail, the respondent No.2 -SFIO filed an application being Criminal Application No. LD/VC/OCR/13/2020 and sought quashing and setting aside of the order passed by the Sessions Court granting interim bail. The said application was allowed by this Court (Coram : C. V. Bhadang, J.) vide order dtd. 5/5/2020. It appears that the applicant filed an SLP
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
