JUDGMENT

Dinesh Kumar Sharma, J.

Overview

1. Present petition under section 482 Cr.P.C. has been moved on behalf of the petitioner SFIO seeking to impugn and set aside the order dated 28.03.2022 passed by the Ld. ASJ-03, Spl. Judge (Companies Act), Dwarka, New Delhi. Vide the impugned order, Ld. Spl. Judge, has granted regular bail to the respondent/accused herein, namely Aarti Singhal in the case titled SFIO v. Bhushan Power & Steels Ltd. with respect to offence under Section 447 Companies Act, 2013, investigated by SFIO.

2. Ld. Spl. Judge has enlarged the respondent/accused on bail taking into account salient factors namely the beneficial proviso contained under Section 212 (6) Companies Act, 2013; the role attributed to the respondent/accused in the said fraud; as three major functionaries of the company have been granted interim protection by the Hon'ble Apex Court in another ED matter pertaining to same/similar allegations which is still subsisting. Ld. Spl. Judge thus while opining that since the offence is by and large documented and there is no likelihood that the respondent/accused would flee from justice or evade trial, held that no purpose would be served in keeping the respondent/accused in JC and enlarged her on bail.

3. It has been submitted that it is settled law that economic offences constitute a class apart and are far more serious to the society as compared to individual criminal offences and they tend to seriously prejudice/destroy the economy of the country, thereby causing immense irreversible damage to the larger public interest. It has been submitted that the Ld. Spl. Judge while granting bail has diluted the mandatory twin conditions as stipulated u/s 212(6) of the Companies Act, 2013, which is contrary to the spirit and object of the Act.

4. Petitioner SFIO thus aggrieved has challenged the said order on the salient grounds which are as under:

a) Ld. Spl. Judge has wrongly interpreted and applied the beneficial proviso under section 212 (6) Companies Act, 2013;

b) Ld. Spl. Judge has failed to consider the detailed role played by the respondent/accused in the present fraud;

c) Ld. Spl. Judge erred while accepting the contention of respondent/accused that she was merely a dutiful/obedient wife acting on the instructions of her husband;

d) Ld. Special Court ruled out the respondent/accused is a flight risk after wrongly relying upon the findings and developments in ED cases (which has a separate mandate) rather than relying exclusively on the SFIO findings, despite the fact that the scope and ambit of investigation under the PMLA and the Companies Act are vastly different, being separate statutes altogether.

e) Ld. Spl. Court has granted bail to the respondent/accused after relying on the order of the Hon'ble Supreme Court granting interim protection to various individuals including the husband of the respondent/accused in another ED matter pertaining to similar allegations. It has been however submitted that the said matter is different and the respondent/accused is not even a party to the said proceedings.

5. It has been submitted that the Ld. Spl. Judge erred while granting bail to the respondent/accused as the SFIO investigation is still underway and at a very crucial stage thus releasing the respondent/accused is detrimental, given that several witnesses associated with the company where she was a director, are being examined and thus, possibility of tampering of evidence cannot be ruled out.

6. Before proceeding further, it is necessary to allude to the background facts leading to the present case.

Background Facts

7. The genesis of the case stems from order No. 5/5/2016/CL-II dated 03.05.2016 issued by the Cent. Govt.-Ministry of Corporate Affairs (hereinafter referred to as MCA)in exercise of its powers u/s 212 (c) of the Companies Act, 2013, vide which investigation into the affairs of Bhushan Power and Steel Ltd. (hereinafter referred to as "BPSL") and Bhushan Steel Limited (hereinafter referred