This is application for anticipatory bail under Section 482 of the BNSS
corresponding to Section 438 of the Cr.P.C. in connection with Company
Case No. 4 of 2024 presently pending before the Learned Special Judge, 2nd
Court in respect of charges under Section 628 of the Companies Act, 1956
and under Sections 447, 448, 166 and 217(8) of the said Act.
2. Learned senior counsel appearing on behalf of the petitioner has
submitted as follows. The petitioner is a lady aged about 50 years. A
complaint has been filed by the SFIO after completion of purported
investigational proceeding, inter alia, on the allegation that a company
namely, Amrit Feeds Limited (AFL), had acquired term loan and working
capital facilities from several banks such as Punjab National Bank, Axis
Bank Limited, ICICI Bank Limited, HDFC Bank Limited and the Bank of
India amounting to Rs. 195 crores approximately. However, out of the said
working capital facilities and term loans, Rs.93.61 crores and Rs.51.66
crores respectively remained outstanding. The petitioner has been
implicated in the aforementioned case simply because she is the wife of Shri
Harish Bagla, the erstwhile managing director of AFL. Allegedly, at one point
of time the petitioner was a director of the said company. On completion of
investigation, SFIO submitted a complaint against the petitioner and other
accused persons on 27.03.2024 before the Learned Special Court and
prayed for summons. This reflects that SFIO did not require the custody of
the petitioner nor considered her an absconding accused. The petitioner
upon being summoned by the Learned Special Court duly appeared through
her learned advocate and filed an application under Section 205 of the Code.
However, by an order dated 26th November 2024, the petitioner’s prayer
made under section 205 of the Code of Criminal Procedure, 1973 was
rejected by the Learned Special Court with the direction that the petitioner
must appear and apply for bail. The aforesaid is contrary to Tarsem Lal vs
Directorate of Enforcement reported (2024) 7 SCC 61, which makes it clear
that if an accused appears pursuant to a summons issued on the complaint,
he cannot be said to be in custody and therefore there is no question of
granting bail and there is nothing to preclude an accused from filing
application under Section 205 CrPC or the accused shall be entitled to
furnish bonds in accordance with section 88 of the Code of Criminal
Procedure, 1973 before the Learned Court below. Since the Learned Court
below insisted on the petitioner to appear and pray for bail; he was
constrained to file an application for anticipatory bail which was rejected by
the Learned Court below vide order dated 6th May 2025. Though the SFIO
has argued before this Hon’ble Court that the petitioner has been evading
the process of investigation and therefore she should be taken into custody;
but fact remains that the SFIO has not only prayed for issuance of
summons against the petitioner before the Learned Trial Court, they have
not even challenged the order issuing summons passed by the learned Trial
Court. The petitioner duly appeared in response to the said summons and
therefore, the so-called coercive processes which were initiated during the
course of investigation, prior to filing of complaint, cannot be permitted to be
relied upon post filing of complaint when no such coercive process has been
prayed for by the investigating agency. The petitioner never absconded from
the due process of law and appeared physically before the SFIO on 27th
December, 2022. Thereafter, the petitioner prayed for some more time due
to medical emergency which was not accepted by the SFIO. Moreover, after
issuance of summons by the learned Trial Court the petitioner duly
appeared through her learned Advocate on every date and was duly
represented. Proviso to Section 212(6) of the Companies Act, 2013, creates
an exception to the rigors of Section 212(6) of the Companies Act, 2013 qua
the charges under Section 447 of the Companies Act, 2013 in respect of
women, sick or infirm and person aged under 60 years. The Hon’ble Delhi
High Court in SFIO vs. Aarti Singhal reported in 2023 SCC Online Del 1956
para 10, 11, 12, 41 to 44 and 46 relying on earlier decision of Komal
Chaddha vs. SFIO (Delhi High Court) upheld the grant of bail to a similarly
circumstanced lady and clearly held that the proviso clause in respect of
women, sick, infirm and people aged below 16 years is an exception to
Section 2112(6) of the Companies Act, 2013. The petitioner, a woman, is a
name lender director in the company, the proviso to Section 212(6) of the
Companies Act, 2013 shall apply. Moreover, when the investigating agency
itself has not prayed for any coercive process against the accused. The
petitioner also relies upon the decision of Deepak Shroff CRR No. 2701 of
2024 judgement dated 22nd August, 2024 passed by this Court in which a
co-accused person of the petitioner was granted liberty to filed appropriate
bond under Section 88 of the Code of Criminal Procedure, 1973 before the
learned Court below upon appearance. The SFIO has relied upon the
judgement of SFIO vs. Aditya Sarda reported in (2025) INSC 477. However,
in the said case, warrant of arrest was issued followed by initiation of
proclamation proceedings under Section 82 of the Code of Criminal
Procedure, 1973. It is in these circumstances that when the Hon’ble High
Court had granted anticipatory bail to the petitioner insptie of being a
proclaimed offender the Hon’ble Supreme Court of India set aside the order
granting anticipatory bail. There is absolutely no relevance of the case relied
upon by the SFIO being State of UP and Anr. vs. Synthetics and Chemicals
Limited and Anr. reported in 1991 (4) SCC 139, which is a judgement
related to Articles 245, 246, 269, 286 and 298 of the Constitution of India
and the doctrine of per in curium. This Hon’ble Court cannot be invited to
decide whether a judgement of the Hon’ble Supreme Court of India is per in
curium or not. The judgement reported in AIR 2011 Cal 158 Taxmaco
Limited vs. Tirupati Build Estate Private Limited is another judgement based
on the law of precedents and per in curium. Moreover, the case of Taxmaco
(supra) relates to proceeding under the Arbitration and Conciliation Act,
1996. The case of TGN Kumar Vs. State of Kerala & Ors. reported in (2011)
2 SCC 772 relates to a case when the Hon’ble Supreme Court of India
refused to lay down any generic directions regarding the discretion of the
Magistrate under Section 205 of the Code of Criminal Procedure, 1973 in
respect of proceedings under Section 138 of the Negotiable Instruments Act.
The said judgement has no bearing in the instant case and does not in any
way affect the observation of the Hon’ble Supreme Court of India in the case
of Tarsem Lal (supra).
