Delhi High Court – Orders
Hira Malhotra vs State Govt Of Nct Of Delhi on 23 March, 2026
Author: Anup Jairam Bhambhani
Bench: Anup Jairam Bhambhani
$~93
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ BAIL APPLN. 1073/2026
HIRA MALHOTRA .....Petitioner
Through: Mr. Vikas Pahwa, Sr. Advocate with
Mr. Pramod Kumar Dubey, Mr.
Syed Arham Masud, Ms. Preeti
Pahwa, Mr. Wasif Naushad, Mr.
Sudeep, Mr. R. B. Siddhartha, Mr.
Yash Saxena, Ms. Khushi Arora,
Mr.Jasmeet Singh and Mr. Samarth
Panwar, Advocates.
versus
STATE GOVT OF NCT OF DELHI .....Respondent
Through: Mr. Shoaib Haider, APP for the State.
Mr. Adit S. Pujari with Mr. Mudit
Jain, Mr. Rudraksh Nakra, Mr.
Aayush Goswami, Mr. Samta
Sharma, Mr. Harjas Singh Gujral, Mr.
Aaoya Jha, Mr. Satya Kha, Mr.
Lakshay Aggarwal and Ms. Prerna
Mukherjee, Advocates for the
complainant.
CORAM:
HON'BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI
ORDER
% 23.03.2026
CRL.M.A. 8039/2026
Exemption granted, subject to just exceptions.
Let requisite compliances be made within 01 week.
The application stands disposed-of.
CRL.M.A. 8036/2026
By way of the present application filed under section 528 of the
Bharatiya Nagarik Suraksha Sanhita 2023 (‘BNSS’), the petitioner
BAIL APPLN. 1073/2026 Page 1 of 9
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seeks leave to file synopsis and list of dates which exceed the
prescribed page limit.
1. For the reasons stated in the application, which is duly supported by
affidavit, the application is allowed.
2. The synopsis and list of dates are taken on record.
3. The application stands disposed-of.
BAIL APPLN. 1073/2026
CRL.M.A. 8037/2026 (for stay)
4. By way of the present petition filed under section 483 read with section
528 of the BNSS, the petitioner inter alia impugns order dated
21.02.2026 passed by the learned Additional Session Judge (FTC)-03,
South East District, Saket Courts, New Delhi in Bail Appl. No.
3358/2025 titled “Hira Malhotra vs. The State“, whereby the
petitioner’s regular bail petition has been dismissed by the learned
sessions court. The proceedings in the present matter pertain to FIR
No. 014/2022 dated 27.01.2022 registered under sections
408/420/467/468/471/120- B IPC at P.S.: Economic Offences Wing,
Delhi.
5. At the outset, it must be noticed that the petitioner is presently neither
in police custody or judicial custody.
6. Mr. Vikas Pahwa, learned senior counsel appearing for the petitioner
submits, that the petitioner has been placed in column No.12 in
chargesheet dated 19.12.2022 filed in the matter.
7. Learned senior counsel submits, that regardless of the petitioner having
been placed in column No. 12, vidé order dated 17.01.2023 passed by
the learned ACMM (South-East), Saket Courts, New Delhi in Cr. Cases
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11296/2022, the learned trial court was pleased to issue summons
returnable for 16.02.2023 to all the accused persons.
8. It is submitted that pursuant to such summons, the petitioner appeared
before the learned trial court via video-conferencing; and filed an
application under section 88 read with section 437 of the Code of
Criminal Procedure, 1973 (‘Cr.P.C.’) seeking bail and permission to
furnish bond for appearance, which application was declined by the
learned trial court vidé order dated 28.11.2025.
9. It is submitted, that in keeping with the law as laid-down by the
Supreme Court in Tarsem Lal vs. Enforcement Directorate 1 , and
especially since the petitioner had duly appeared before the learned
trial court against the summons received, there was no basis for the
learned trial court to have remanded the petitioner to custody.
10. To support his contention, learned senior counsel has drawn attention
to paras 30 and 31 of Tarsem Lal, to submit, that the Supreme Court
has clearly laid-down that where, before the filing of the complaint an
accused is not arrested and when the accused appears in compliance of
summons issued after filing of the complaint, the accused is not
required to be taken into custody and should not be forced to apply for
bail.
“30. Once cognizance is taken of the offence punishable
under Section 4 PMLA, the Special Court is seised of the matter.
After the cognizance is taken, ED and other authorities named in
Section 19 cannot exercise the power of arrest of the accused shown
in the complaint. The reason is that the accused shown in the
complaint are under the jurisdiction of the Special Court dealing1
(2024) 7 SCC 61BAIL APPLN. 1073/2026 Page 3 of 9
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with the complaint. Therefore, after cognizance of the complaint
under Section 44(1)(b) PMLA is taken by the court, ED and other
authorities named in Section 19 are powerless to arrest an accused
named in the complaint. Hence, in such a case, an apprehension
that ED will arrest such an accused by exercising powers under
Section 19 can never exist.
“31. We are informed across the Bar by the learned counsel
of the appellants that some of the Special Courts under PMLA are
following the practice of taking the accused into custody after they
appear pursuant to the summons issued on the complaint.
Therefore, the accused are compelled to apply for bail or for
anticipatory bail apprehending arrest upon issuance of summons.
We cannot countenance a situation where, before the filing of the
complaint, the accused is not arrested; after the filing of the
complaint, after he appears in compliance with the summons, he is
taken into custody and forced to apply for bail. Hence, such a
practice, if followed by some Special Courts, is completely illegal.
Such a practice may offend the right to liberty guaranteed by Article
21 of the Constitution of India. If ED wants custody of the accused
who appears after service of summons for conducting further
investigation in the same offence, ED will have to seek custody of
the accused by applying to the Special Court. After hearing the
accused, the Special Court must pass an order on the application by
recording brief reasons. While hearing such an application, the
court may permit custody only if it is satisfied that custodial
interrogation at that stage is required, even though the accused was
never arrested under Section 19. However, when ED wants to
conduct a further investigation concerning the same offence, it may
arrest a person not shown as an accused in the complaint already
filed under Section 44(1)(b), provided the requirements of Section
19 are fulfilled.”
(emphasis supplied)
11. It is submitted, that on a bare reading of Tarsem Lal, it is clear that the
Supreme Court has held that the practice of trial courts remanding
accused persons to judicial custody after they have appeared before the
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court in compliance of summons issued; compelling accused persons to
seek anticipatory bail before complying with summons; or seeking bail
subsequently, since they find themselves remanded to judicial custody,
is completely illegal and in contravention to the rights of an accused
under Article 21 of the Constitution of India. Learned senior counsel
submits, that the Supreme Court has also clarified that if the
prosecuting agency wants custody of an accused for conducting further
investigation, once the accused has appeared before the trial court after
service of summons, they must move an application before the
concerned court seeking such custody; and the court would only grant
such custody if it is satisfied that custodial interrogation of the accused
is required at that stage.
12. Learned senior counsel has further drawn attention to the following
extract of Tarsem Lal, to submit that the learned trial court ought to
have accepted the bond furnished by the petitioner under section 88 of
the Cr.P.C.:
“20. … … Therefore, when an accused appears before the
Special Court under a summons issued on the complaint, if he
offers to submit bonds in terms of Section 88, there is no reason
for the Special Court to refuse or decline to accept the bonds.
Executing a bond will aid the Special Court in procuring the
accused’s presence during the trial.”
(emphasis supplied)
13. Mr. Pahwa submits, that proceeding on the misconceived basis that the
petitioner had failed to appear before the court physically and had only
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appeared through video-conferencing, the learned trial court proceeded
to record as follows in order dated 28.11.2025:
“19.However, vide order dated 30.10.2025, the
applicant/accused Hira Malhotra was directed to appear before this
court in person but today also he has appeared through VC only
instead of appearing in person physically before this court.
Accordingly, issue bailable warrants in the sum of Rs. 10,000/-
against accused Hira Malhotra with one surety in the like amount
through SHO concerned for the 22.01.2026.”
14. Mr. Pahwa submits however that, as set-out in paras 55 and 53 of the
bail petition, the petitioner had appeared on several dates physically
before the learned trial court as well as the learned sessions court,
copies of which orders are annexed to the present petition.
15. To answer the objection that a bail petition would not be maintainable
since the petitioner is not in custody at all, Mr. Pahwa submits, that it is
the long settled position in Niranjan Singh & Anr. vs. Prabhakar
Rajaram Kharote & Ors.2, that once an accused appears before a court,
he is deemed to be in the custody of the court and is therefore entitled
to apply for bail. Attention in this behalf is drawn to paras 6, 7 and 8 of
Niranjan Singh.
16. Mr. Pahwa further submits, that vidé order dated 01.09.2025 passed by
a Co-ordinate Bench of this court in Crl.M.C. 4792/2025 and Crl.M.C.
480/2025, two other co-accused persons – Mr. Rajesh Kumar Jha and
Mr. Ajay Tiwari, have been granted interim protection by this court.
2
(1980) 2 SCC 559
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17. Mr. Pahwa however argues, that when a similar petition was moved by
the petitioner, vidé order dated 27.11.2025 in CRL.M.C. No.
8458/2025 the same Co-ordinate Bench declined to treat the petitioner
on parity with the other co-accused person only on the basis that the
bail applications of the two other co-accused persons had already been
dismissed by the learned trial court but the petitioner’s bail application
was, at that stage, pending before the learned trial court.
18. Additionally, it is pointed-out that bailable warrants issued against the
petitioner by the learned trial court vidé order dated 28.11.2025 had
been stayed by the learned sessions court vidé order dated 06.12.2025.
19. Mr. Pahwa submits, that despite the aforementioned run of events, the
learned sessions court has dismissed the petitioner’s bail application.
20. Mr. Pahwa stresses the following 03 principal submissions:
a. Firstly, that since summons had been issued to the petitioner
despite him having been placed in Column No.12 of the
chargesheet, the learned trial court ought to have accepted the
bond for appearance furnished by the petitioner under section 88
of the Cr.P.C. and there was no requirement for the petitioner to
have even filed a bail application;
b. Secondly, once the petitioner had filed his bail application, and the
bailable warrants issued against him had also been stayed, there
was no basis for the learned sessions court to have rejected the
plea for acceptance of bond for appearance under section 88 of the
Cr.P.C.;
c. Thirdly, the petitioner was entitled to benefit of the view taken by
the learned Co-ordinate Bench vidé order dated 01.09.2025 inBAIL APPLN. 1073/2026 Page 7 of 9
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Crl.M.C. 4792/2025 and Crl.M.C. 480/2025, whereby the other co-
accused persons have been granted interim protection; and
d. Lastly, the learned sessions court ought to have appreciated that
vidé order dated 27.11.2025, the Co-ordinate Bench had
distinguished the case of the petitioner from the case of other co-
accused persons only on the ground that at that stage the
petitioner’s bail application was still pending before the learned
trial court.
21. Issue notice.
22. Mr. Shoaib Haider, learned APP appears on behalf of the State on
advance copy; accepts notice; and seeks time to file status report.
23. Mr. Adit S. Pujari, learned counsel is present on behalf of the
complainant; submits, that a bail petition is not maintainable at the
hands of the petitioner; and seeks time to file reply.
24. Let status report/reply be filed within 03 weeks; response/rejoinder be
filed within 01 week thereafter; with copies to the opposing counsel.
25. Re-notify on 24th April 2026 alongwith the connected matter.
26. At this stage, on a prima-facie view of the matter, it appears to this
court that since the petitioner’s name was put in column No. 12 of the
charge-sheet; the petitioner had appeared before the learned trial court
in response to summons received (including physically on some dates);
the petitioner was willing to furnish bond for appearance under section
88 of the Cr.P.C.; and the I.O. had not sought the petitioner’s custody,
there was no reason why the learned trial court should not have
accepted the bond for appearance under section 88 of Cr.P.C. It seems,
since the petitioner entertained serious apprehension that he would be
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remanded to custody if he appeared without any protection, the
petitioner attempted to get anticipatory bail, and subsequently regular
bail; and all such applications were dismissed. The regular bail
applications filed before the learned trial court as well as the learned
sessions court were dismissed, with the courts taking the somewhat
ambiguous view, that the bail applications were not maintainable since
the petitioner was not in custody, while at the same time also
dismissing the bail applications on merits. This is clearly an ambiguous
situation, considering the judicial precedents cited hereinbefore.
27. On a prima-facie view of the matter, based on the submissions made
and the judicial precedents cited, it is directed that no coercive steps
shall be taken against the petitioner, till the next date of hearing before
this court.
CRL.M.A. ____/2026 (exemption from surrendering)
28. The Registry had inadvertently numbered two applications as
CRL.M.A.8036/2026. The Registry is directed to resolve this issue
before the next date.
29. Re-notify on 24th April 2026 alongwith connected matter.
ANUP JAIRAM BHAMBHANI, J
MARCH 23, 2026
ds
BAIL APPLN. 1073/2026 Page 9 of 9
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