IMPORTANT POINT
The court ruled that bail restrictions under Section 212(6) of the Companies Act do not apply if the accused cooperated with the investigation and were not consciously arrested.

JUDGMENT :

1. The batch of cases gives rise to similar question of law i.e. where restrictions under Section 212(6) of the Companies Act would stand in the way of bail to the opposite parties/accused. Brief sketch of facts leading to the instant proceedings is as follows:-

2. Pursuant to the direction by the Ministry of Corporate Affairs, SFIO initiated investigation with regard to the affairs of Prayag Group of Companies. In course of investigation, involvement of the opposite parties/accused in the alleged offences transpired. They were interrogated and upon conclusion of investigation complaint was filed.

3. Learned Judge took cognizance and issued summons upon the opposite parties/accused. They appeared before the trial court and were released on bail. The bail orders are presently assailed in these proceedings the ground that the court had not taken into consideration the restrictions under Section 212 (6) of the Companies Act.

4. Section 212 (6) of the Companies Act reads as follows:-

“(6) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) 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.”

5. The twin requirements imposed on the court while considering the prayer for bail are as follows:-

a) Public Prosecutor must be given an opportunity to oppose the application; and

b) When the Public Prosecutor opposes the application, court must be satisfied that there is reasonable ground to believe that the accused is not guilty of the offence and is not likely to commit any offence while on bail.

The aforesaid provision is pari meteria to the restrictions of bail in Section 37 of the NDPS Act and Section 45(1) of PMLA Act.

6. Mr. Majumder, learned Advocate for the petitioner/SFIO submits that Judge did not give opportunity to the Public Prosecutor to oppose the bail applications. He also submits the Court had not applied his mind and recorded its satisfaction that the accused were not guilty of the alleged offences or are not likely to commit similar offence. Accordingly, the bail orders suffer from patent illegality and are liable to be set aside.

7. Learned Advocates for the opposite parties/accused submit their clients had co-operated in the course of investigation and had not been arrested. Under such circumstances, in view of the observations in paragraph ‘89’ of Satender Kumar Antil Vs. Central Bureau of Investigsation & Anr. (2022) 10 SCC 51, the restrictions under Section 212(6) of the Companies Act shall not apply.

8. Section 212(6) of the Companies Act imposes restrictions in the matter of bail. The provision mandates the court to give an opportunity of hearing to the Public Prosecutor and in the event Public Prosecutor opposes the bail, the court has to record its satisfaction that the accused is not guilty of the offence or is not likely to commit similar offence in future before releasing the accused on bail. It is true in the present case the court did not record such satisfaction while granting bail to the opposite parties/accused. However, it is admitted their bail applications were heard in presence of the Public Prosecutor and the latter did not raise objection during the hearing.

9. Moreover, during investigation opposite parties/accused had co-operated with the investigating agency and had been interrogated. They had not been arrested during investigation. In Satender Kumar Antil (supra), the Apex Court held as follows:-

“89. We may clarify on one aspect which is on the interpretation of Section 170 of the Code. Our discussion made for the other offences would apply to t