IMPORTANT POINT
The power to grant Anticipatory Bail is available to the High Court and the Court of Sessions, even when cognizance is taken or a charge-sheet has been filed. The belief that the accused may be arrested must be founded on reasonable grounds and not on mere fear or vague apprehension.

JUDGMENT

Navin Chawla, J. - These applications have been filed under Section 438 of the Code of Criminal Procedure, 1973 (in short, 'Cr.P.C.') seeking grant of Anticipatory Bail in CC No. 272/2022 titled Serious Fraud Investigation Office v. Dura Line India Pvt. Ltd. (DIPL) & Ors. pending before the Court of the learned Additional Sessions Judge-03, Special Court (Companies Act), South-West District, Dwarka Courts, New Delhi (hereinafter referred to as the 'Trial Court'). As almost similar submissions have been made by the learned counsels for the Applicants, these applications are being disposed of by this common judgment.

2. The above complaint has been filed by the respondent herein under Section 439(2) read with Section 436 (1)(a), (d) and Section 436 (2) read with Section 212 (6) and Section 212(15) of the Companies Act, 2013 (hereinafter referred to as the 'Act') read with Section 193 of the Cr.P.C., on which, by an Order dated 16.07.2022 passed by the learned Trial Court, the Applicant(s) herein has been summoned as an accused for offence under Sections 447 and 448 read with Sections 447, 449, 96 read with Section 99; Section 135 read with Section 450 of the Act as far as Applicants Abraham George and Mahendra Gambhir are concerned, and Sections 447 and 448 read with Section 447 of the Act as far as the Applicant Yogesh Sudhanshu is concerned.

Submissions of the Learned Counsel for the Respondent:

3. The learned counsel for the respondent raised a preliminary objection on the maintainability of the present applications. He submits that as the Applicant(s) has been summoned on a complaint filed by the respondent before the learned Trial Court, an application under Section 438 of the Cr.P.C. by the Applicant(s) would no longer be maintainable; the only remedy available to the Applicant(s) is to apply for Bail under Section 439 of the Cr.P.C..

4. The learned counsel for the respondent submits that an application under Section 438 of the Cr.P.C. is maintainable only where the person has reason to believe or an apprehension that he may get arrested on the accusation of having committed a non-bailable offence. He submits that, admittedly, the Applicant(s) was not arrested before the filing of the complaint. Once a complaint has been filed, the learned Trial Court, after looking into the nature of the accusations that have been made in the complaint and upon hearing the Applicant(s), may take the Applicant into 'custody'. He submits that there is a difference in the legal meaning and implications of the terms 'arrest' and 'custody', as has been explained by the Supreme Court in its judgments in Directorate of Enforcement v. Deepak Mahajan, (1994) 3 SCC 440 and Sundeep Kumar Bafna v. State of Maharashtra & Anr., (2014) 16 SCC 623.

5. Placing reliance on the judgment of the Supreme Court in Satender Kumar Antil v. Central Bureau of Investigation & Anr. (2022) 10 SCC 51, he submits that the grant of bail in case of a complaint under Section 212 (6) of the Act, is circumscribed by the special conditions prescribed therein and the general rules for consideration of an application for bail cannot be applied.

6. Placing reliance on the judgment of the Supreme Court in Gurbaksh Singh Sibbia v. State of Punjab (1980) 2 SCC 565, he submits that for granting anticipatory bail to any person, it is necessary for him to show that he has reasons to believe that he may get arrested. He submit that, in the present case, as the applicant was not arrested during the course of the investigation by the respondent, he does not have any reason to believe that he may get arrested once he appears before the learned Trial Court in answer to the summons issued to him.

7. He submits that merely because the learned Trial Court, in a few cases, has rejected the application filed by the accused therein for being released on Bail, it cannot also give rise to such a belief in the Applicant(s) that if they apply for Bail before the learned Trial Court, the same shall