# Satish Chandra Gupta v. State of U.P. & Ors

- **Citation:** (2024) 4 ILRA 1055
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-03-20
- **Case number:** Criminal Misc Anticipatory Bail Application No. 12465 of 2023
- **Bench:** Sameer Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/satish-chandra-gupta-v-state-of-u-p-ors-51769
- **Pages:** 7

## Headnote

Criminal Law - Companies Act, 2013 -
Sections 439 (2), 436 (1)(a) & (d)
Proviso to Section 212(6) & 212 (14) -
Companies Act, 1956 - Section 621(1) -
Anticipatory
bail
-
Maintainability
-
Record reveals that criminal complaint
under Companies Act was filed against
applicant
&
ors.,
wherein
applicant,
arrayed as accused no. 54, being exdirector of foreign entity, is alleged to
have connived with other entities in
conducting
fraudulent
merchanting
trade, causing loss of crores of rupees to
bank, thereby attracting liability u/s 447
of Act, 2013 - Learned counsel for Union
of India raised preliminary objection that
applicant, having directly approached
High Court u/s 438 Cr.P.C. without first
moving court concerned, renders present
anticipatory
bail
application
not
maintainable - As per Five-Judge Full
Bench decision in Anktit Bharti (infra),
application for pre-arrest bail can be
entertained by High Court directly only in
exceptional circumstances, and not as
matter
of
routine,
unless
special
circumstances are shown to exist -
Applicant has not disclosed any special
circumstance for directly approaching
High Court u/s 438 Cr.P.C. without first
moving
court
concerned
-
In
supplementary affidavit, applicant merely
asserted that Section 438 Cr.P.C. does
not bar filing anticipatory bail directly
before the High Court - However, such
assertion does not constitute special
circumstance
warranting
direct
entertainment of instant application -
Admittedly,
applicant
is
resident
of
London (U.K.) and not residing in India -
Investigation
stands
concluded,
and
applicant has been summoned along with
others - No warrants issued against him
till date - Hence, question arises whether
any reasonable apprehension of arrest
still exists - Therefore, it appears that no
apprehension of arrest exists in respect
of applicant - Application rejected. (Para
22, 23, 26, 27, 33, 35)

Application rejected. (E-13)

List of Cases cited:

## Text

4 All. Satish Chandra Gupta Vs. State of U.P. & Ors.
1055
33.

Accordingly,
the
bail
application stands rejected.

34. It is clarified that the
observations, if any, made in this order are
strictly confined to the disposal of the bail
application and must not be construed to
have any reflection on the ultimate merits
of the case.
----------
(2024) 4 ILRA 1055
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.03.2024

BEFORE

THE HON'BLE SAMEER JAIN, J.

Criminal Misc Anticipatory Bail Application No.
12465 of 2023
(Under Section 438 Cr.P.C.)

Satish Chandra Gupta ...Applicant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Applicant:
Sri Gopal Misra, Sri Anoop Trivedi (Sr. Adv.)

Counsel for the Respondents:
G.A., Sri R.P.S. Chauhan

Criminal Law - Companies Act, 2013 -
Sections 439 (2), 436 (1)(a) & (d)
Proviso to Section 212(6) & 212 (14) -
Companies Act, 1956 - Section 621(1) -
Anticipatory
bail
-
Maintainability
-
Record reveals that criminal complaint
under Companies Act was filed against
applicant
&
ors.,
wherein
applicant,
arrayed as accused no. 54, being exdirector of foreign entity, is alleged to
have connived with other entities in
conducting
fraudulent
merchanting
trade, causing loss of crores of rupees to
bank, thereby attracting liability u/s 447
of Act, 2013 - Learned counsel for Union
of India raised preliminary objection that
applicant, having directly approached
High Court u/s 438 Cr.P.C. without first
moving court concerned, renders present
anticipatory
bail
application
not
maintainable - As per Five-Judge Full
Bench decision in Anktit Bharti (infra),
application for pre-arrest bail can be
entertained by High Court directly only in
exceptional circumstances, and not as
matter
of
routine,
unless
special
circumstances are shown to exist -
Applicant has not disclosed any special
circumstance for directly approaching
High Court u/s 438 Cr.P.C. without first
moving
court
concerned
-
In
supplementary affidavit, applicant merely
asserted that Section 438 Cr.P.C. does
not bar filing anticipatory bail directly
before the High Court - However, such
assertion does not constitute special
circumstance
warranting
direct
entertainment of instant application -
Admittedly,
applicant
is
resident
of
London (U.K.) and not residing in India -
Investigation
stands
concluded,
and
applicant has been summoned along with
others - No warrants issued against him
till date - Hence, question arises whether
any reasonable apprehension of arrest
still exists - Therefore, it appears that no
apprehension of arrest exists in respect
of applicant - Application rejected. (Para
22, 23, 26, 27, 33, 35)

Application rejected. (E-13)

List of Cases cited:

1. Ankit Bharti & ors. Vs St. of U.P & anr. 2020
(3) ADJ 575

2. Vinod Kumar Vs St. of U.P. & anr. 2019 (12)
ADJ 495

3. Vijay Babu Vs St. of Kerala & ors. 2022 SCC
OnLine Ker 3158

4. Mahdoom Bava Vs Central Bureau of
Investigation 2023 SCC OnLine SC 299

5. Gurbaksh Singh Sibbia & ors. Vs St. of Punj.
(1980) 2 SCC 565, (Para 35)

6. Sushila Agarwal & ors. Vs St. of NCT Delhi &
anr. (2020) 5 SCC 1
1056 INDIAN LAW REPORTS ALLAHABAD SERIES
(Delivered by Hon'ble Sameer Jain, J.)

1. Dr. S.B. Maurya, learned AGA-I
for the State apprised the Court that he has
received the instructions, therefore, instant
anticipatory bail application may be finally
disposed off.

2. Heard Sri Anoop Trivedi,
learned Senior Advocate assisted by Sri
Gopal Misra, learned counsel for the
applicant, Sri R.P.S. Chauhan, learned
counsel appearing on behalf of Union of
India and Dr. S.B. Maurya, learned AGA-I
for the State.

3. The present anticipatory bail
application has been filed on behalf of the
applicant to enlarge him on anticipatory
bail in Sessions Trial No. 577 of 2020
under Section 447 of the Companies Act
arising out of Complaint U/s 439 (2)
R/W, Section 436 (1)(a) & (d) R/W
Proviso to Section 212(6) R/W 212 (14)
of the Companies Act, 2013 R/W 621 (1)
of the Companies Act, 1956 pending in
the Court of Special Judge (Companies
Act)/ Additional Sessions Judge, Kanpur
Nagar.

Preliminary objections raised by
Union of India

4. At the very outset, Sri R.P.S.
Chauhan, learned counsel appearing on
behalf of Union of India raised following
preliminary objections:-

(a) applicant directly approached
this Court for his pre arrest bail under
Section 438 Cr.P.C. without approaching
the court concerned under Section 438
Cr.P.C.
(b) applicant is the resident of
United Kingdom (U.K.) and is residing in
U.K. and not in India, therefore, there is no
apprehension of his arrest.
Submissions advanced on behalf
of Union of India with regard to
preliminary objections:-

5. Learned counsel appearing on
behalf of Union of India submitted that
applicant
straight-way
filed
instant
anticipatory bail application before this
Court without approaching the court
concerned and no special circumstances has
been disclosed by him in this regard,
therefore, considering the law laid down by
the Full Bench of Five Judges of this Court
in the case of Ankit Bharti and others Vs.
State of U.P and another 2020 (3) ADJ
575,
the
instant
anticipatory
bail
application is not maintainable.

6. He further submits that admittedly
applicant is the resident of London (U.K.)
and investigation of the case has already been
concluded and on the basis of the complaint,
he has been summoned and till date no
warrant has been issued against him,
therefore, applicant is not having any belief
of his arrest, therefore, on this ground also the
instant anticipatory bail application is not
maintainable.

7. He further submits that if
applicant is released on anticipatory bail
then under the pretext of order of pre-arrest
bail, he will never return to India for trial.
He further submits that no blanket
protection can be given to the applicant
under Section 438 Cr.P.C. He further
submits that there are several examples in
the past, if an accused once fled from India
he never turned up to face the legal
proceedings.

8. He further submits that it is a
fraud under the Companies Act in the tune
4 All. Satish Chandra Gupta Vs. State of U.P. & Ors.
1057
of crores of rupees and applicant being Ex
Director of one of the U.K. firm also
involved in the commission of the fraud.

9. He further submits that on the
summon issued, applicant can come to
India
and
participate
in
the
court
proceedings and on arrival in India if he
apprehends that when he will appear before
the court concerned, he will be sent to the
custody then he can file an application for
pre-arrest bail under Section 438 Cr.P.C.
and
therefore
present
application
is
premature.

10. He further submits that instant
pre-arrest bail application filed by applicant
clearly suggests that applicant is not
intended to participate in the court
proceedings and under the pretext of order
of pre-arrest bail he will never turn up
before the trial court.

Submissions advanced on behalf
of applicant against the preliminary
objections

11.
 Against
the
preliminary
objections raised by learned counsel
appearing on behalf of Union of India,
learned Senior Advocate appearing on
behalf of the applicant submitted that from
perusal of the provisions of Section 438
Cr.P.C. it is apparent that anticipatory bail
application can be filed either before the
court of sessions or before this Court,
therefore, if applicant opted to file the
anticipatory bail application directly before
this Court then he did not commit any
illegality and it cannot be said that his
anticipatory
bail
application
is
not
maintainable.

12. He further submits that
admittedly applicant is residing in London
(U.K.) and he is not residing within the
jurisdiction of concerned sessions judge,
therefore, even from this angle, he can
directly file anticipatory bail application
before this Court in view of the judgment
passed by learned Single Judge of this
Court in case of Vinod Kumar Vs. State
of U.P. and another 2019 (12) ADJ 495.

13. He further argued, as per
observation made by learned Single Judge
of this Court in the case of Vinod Kumar
(supra), the anticipatory bail can be filed
straight-way to this Court where an accused
is not residing within the jurisdiction of the
concerned sessions judge faces a threat of
arrest.

14. He further submits that the Full
Bench of this Court in the case of Ankit
Bharti (supra) approved the law laid down
by the learned Single Judge of this Court in
the case of Vinod Kumar (supra).

15. He further submits that as far as
the second objection raised by learned
counsel appearing on behalf of Union of
India is concerned, merely due to the fact
that applicant is residing abroad, it cannot
be said that he is not having any
apprehension of arrest. He further submits
that
advancement
in
investigative
technology and communication, the various
agencies of investigation could even be
deployed to arrest a person outside the
country. He placed reliance on the
judgment of High Court of Kerala in the
case of Vijay Babu Vs. State of Kerala
and others 2022 SCC OnLine Ker 3158.

16. He further submits that
applicant is 73 years old person and he is
willing
to
participate
in
the
legal
proceedings pending in India, therefore, on
the basis of summons issued to him, he
1058 INDIAN LAW REPORTS ALLAHABAD SERIES
wants to appear before the court concerned
but is having apprehension, if he will
appear before the court concerned then he
will be taken into custody.

17. He further submits that
considering the practice now a days being
adopted by the trial courts apprehension of
custody raised by the applicant cannot be
completely brushed aside. He further
submits that even the Apex Court in the
case of Mahdoom Bava Vs. Central
Bureau of Investigation 2023 SCC
OnLine SC 299 has shown its concern in
this regard.

18. He further submits that as till
date only summons have been issued
against the applicant on the complaint,
therefore, filing of instant anticipatory bail
before this Court itself shows his bona fide
and his eagerness to participate in the legal
proceedings.

19. He further submits that
applicant is law abiding citizen and he does
not want to evade any legal process. He
further submits that during investigation
applicant was not arrested, however, on call
he twice visited India from United
Kingdom
and
appeared
before
the
Investigating
Officer
and
after
the
permission of the Investigating Officer he
went back U.K., therefore, no presumption
can be drawn that if applicant would be
released on anticipatory bail then he will
not return to India and will not participate
in the court proceedings.

20. Learned Senior Advocate
appearing on behalf of the applicant further
submitted that considering the facts and
circumstances of the case, both the
preliminary objections raised by learned
counsel appearing on behalf of Union of
India are devoid of merits and are liable to
be dismissed and instant anticipatory bail
application of the applicant should be heard
on merit.

Conclusion

21. I have heard learned counsel
for the parties and perused the record of the
case.

22. From the record, it reflects that
a criminal complaint was filed against the
applicant and several others under the
provisions of Companies Act. Applicant, is
the accused no.54 in the complaint and as
per allegation he was Ex Director in a
Foreign Entity and he also connived with
other
entities
in
running
of
fraudulent/abusive
merchanting
trade
business and thus caused huge losses of
crores of rupees to the bank and is liable to
be punished for offence under Section 447
of Companies Act, 2013.

23. Learned counsel appearing on
behalf of Union of India raised two
preliminary objections. His first objection
is that applicant directly approached this
Court under Section 438 Cr.P.C. for his prearrest bail without approaching the court
concerned, therefore, instant anticipatory
bail application is not maintainable.

24. Five Judges Full Bench of this
Court in the case of Ankti Bharti (supra)
held, the anticipatory bail application can
be filed before this Court directly but only
in special circumstances and special
circumstances must necessarily exist and be
established as such before jurisdiction of
this Court is invoked directly.

25. The Full Bench further
observed that it is up to the Hon'ble Judge
4 All. Satish Chandra Gupta Vs. State of U.P. & Ors.
1059
before
whom
the
anticipatory
bail
application is placed whether according to
him any special circumstances exist to
entertain the application of anticipatory bail
filed directly before this Court.

26. Therefore, as per five judges
Full Bench of this Court an application for
pre-arrest bail can only be entertained by
this Court directly in only exceptional
circumstances and not in routine manner
and for entertaining such application
directly special circumstances must exist.

27. In case at hand, in the entire
anticipatory bail application, applicant did
not disclose any special circumstances why
he directly approached this Court without
approaching the court concerned under
Section 438 Cr.P.C., however, in the
supplementary affidavit dated 26.11.2023
applicant averred that in view of the
provisions of Section 438 Cr.P.C. there is
no
bar
if
applicant
directly
files
anticipatory bail application before this
Court. In view of this Court, it is not a
special circumstance on the basis of which,
the instant anticipatory bail application can
be entertained directly by this Court.

28. Further, applicant is the
resident of London (U.K.) and as per the
view expressed by learned Single Judge of
this Court in the case of Vinod Kumar
(supra), which was approved by the Full
Bench of this Court in the case of Ankit
Bharti (supra) if an accused resides outside
the concerned jurisdiction of sessions
judge, then he can file anticipatory bail
application directly before this Court if
faces threat of arrest. Even five judges full
Bench of this Court in case of Ankit Bharti
(supra) held that such application must rest
on strong foundation with regard to
apprehension of arrest. Therefore, threat of
arrest of the applicant is necessary for
maintainability of his instant anticipatory
bail application directly before this Court.

29. The second objection of Union
of India is also with regard to belief of
arrest of the applicant. Therefore, the core
issue is whether applicant is having belief
of his arrest.

Belief of arrest

30. The belief of arrest of accused
is also the condition precedent for prearrest bail. The Constitution Bench of the
Apex Court in the case of Gurbaksh Singh
Sibbia and others Vs. State of Punjab
(1980) 2 SCC 565 also emphasised a lot on
it and held that mere fear is not belief of
arrest and belief of arrest must be based on
concrete facts and it must be clearly
reflected from the face on record and
without
apprehension
of
arrest,
the
anticipatory bail application under Section
438 Cr.P.C. should not be considered.

31. The Constitution Bench of the
Apex Court in the case of Gurbaksh Singh
Sibbia (supra) in paragraph 35 observed:-

"35. Section 438 (1) of the Code
lays down a condition which has to be
satisfied before anticipatory bail can be
granted. The applicant must show that he
has reason to believe that he may be
arrested for a non-bailable offence. The use
of the expression reason to believe shows
that the belief that the applicant may be so
arrested must be founded on reasonable
grounds. Mere fear is not belief, for which
reason it is not enough for the applicant to
show that he has some sort of a vague
apprehension that some one is going to
make an accusation against him, in
pursuance of which he may be arrested.
1060 INDIAN LAW REPORTS ALLAHABAD SERIES
The grounds on which the belief of the
applicant is based that he may be arrested
for a non-bailable offence, must be capable
of being examined by the court objectively,
because it is then alone that the court can
determine whether the applicant has reason
to believe that he may be so arrested.
Section 438 (1), therefore, cannot be
invoked on the basis of vague and general
allegations, as if to arm oneself in
perpetuity
against
a
possible
arrest.
Otherwise, the number of applications for
anticipatory bail will be as large as, at any
rate, the adult populace. Anticipatory bail
is a device to secure the individual's
liberty; it is neither a passport to the
commission of crimes nor a shield against
any and all kinds of accusations, likely or
unlikely."

32. The another Constitution Bench
of the Apex Court in the case of Sushila
Agarwal and others Vs. State of NCT
Delhi and another (2020) 5 SCC 1
reiterated the observation made by the
Constitution Bench in the case of Gurbaksh
Singh Sibbia (supra) and observed that
apprehension of arrest should not be
imaginary, therefore, the law is settled, for
pre-arrest bail, it is necessary for the accused
to show his apprehension of arrest against
accusation for non-bailable offences.

33. In case at hand, admittedly
applicant is not residing in India and he is
resident
of
London
(U.K.).
The
investigation of the case has already been
concluded and on complaint applicant was
summoned along with others and till date
no warrants has been issued against him.
Therefore,
question
is
whether
still
applicant is having belief of his arrest.

34. The learned Single Judge of
Kerala High Court in case of Vijay Babu
(supra) on which reliance was placed by
applicant,
however,
observed
that
investigating agencies can arrest the
accused even outside the country but the
facts of the present case are distinguishable
from the facts of the case of Vijay Babu
(supra).

35. In the case of Vijay Babu
(supra) it appears that the investigation of
the case was pending, therefore, learned
Single Judge of the Kerala High Court
observed in that context that due to the
advancement in investigative technology
and communication, the various agencies
of investigation could even arrest a person
outside the India but in case at hand,
investigation has already been concluded
and after filing of complaint till date only
summons have been issued against the
applicant. Therefore, prima facie in the
present matter it appears, there is no
apprehension of the arrest of applicant who
resides in London (U.K.)

36. Further, if applicant truly
wants to participate in the legal proceeding
in India then on the basis of summon he
can arrive India and after arrival if he
apprehends his arrest/custody then he can
approach under Section 438 Cr.P.C. for his
pre-arrest bail. The instant anticipatory bail
application, at this stage, appears to be premature.

37. Further, this Court finds force
in the argument advanced by learned
counsel appearing on behalf of Union of
India that if blanket protection is given to
the applicant under Section 438 Cr.P.C.
then possibility cannot be ruled out that he
will never return to India.

38. Therefore, considering the
facts and circumstances of the case
4 All. M/s Shri Bankhandi Nath Developers Pvt. Ltd. Vs. Dharmendra Kumar Rathore & Ors. 1061
discussed above, in my view, both
the preliminary objections raised by Union
of India are well founded and instant
anticipatory
bail
application
is
not
maintainable.

39.

Accordingly,
without
expressing any opinion on the merits of the
case,
the
instant
anticipatory
bail
application is rejected.
----------
(2024) 4 ILRA 1061
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.01.2024

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

Civil Revision No. 61 of 2022

M/s Shri Bankhandi Nath Developers Pvt.
Ltd. ...Petitioner
Versus
Dharmendra Kumar Rathore & Ors.
 ...Respondents

Counsel for the Petitioner:
Ms. Shreya Gupta, Sri Ravi Anand Agarwal

Counsel for the Respondents:
Sri Arvind Srivastava III, Sri Sushil Kumar
Shukla, Sri Navin Sinha (Sr. Advocate)

Criminal Law - Code of Civil Procedure,
1908 - Order 1 Rule 10(2), Section 115 -
Companies Act, 1956 - Sections 397 &
398 - Civil Revision Against Impleadment Order
- Necessary and Proper Party - Dominus Litis
Principle - Specific Performance of Agreement
to Sale - Fraudulent Board Resolution -
Jurisdiction of Revisional Court
The plaintiff/revisionist, M/s Shri Bankhandi
Nath Developers Pvt. Ltd., challenged the order
dated 11.05.2022 by the Civil Judge (Senior
Division), Bareilly, allowing applications (151Ka
and 227Ga) of respondent no.1, Dharmendra
Kumar Rathore, to be impleaded as a
defendant in Original Suit No. 530 of 2017 for
specific performance of an agreement to sale
dated 12.07.2011 and to declare subsequent
sale deeds dated 11.11.2011 and 29.11.2012
null and void. The plaintiff/revisionist, a
company,
alleged
that
respondent
no.2
executed the agreement for Rs.3.28 crore,
receiving Rs.1 crore as advance, but sold the
suit property to respondents no.3, 4, and 5 via
two sale deeds, falsely claiming a company
resolution dated 15.07.2011 authorized the
sales. Respondent no.1, a director, sought
impleadment, arguing: (1) no board resolution
authorized the suit's filing, (2) allegations of
his collusion in the sale deeds necessitated his
defense, and (3) his impleadment in a related
SLP (No. 1204 of 2022) by the Supreme Court
justified his inclusion. The plaintiff/revisionist
contended that respondent no.1 was neither
necessary nor proper, as no relief was sought
against him, and the plaintiff, as dominus litis,
could not be compelled to include him. Held:
The revision was allowed, quashing the trial
court's order, finding: (1) the trial court failed
to assess Order 1 Rule 10(2) requirements,
committing
material
irregularity;
(2)
respondent no.1 was not a necessary or proper
party, as his presence was not essential to
adjudicate the suit's issues, per Ramesh
Hirchand Kundanmal Vs Municipal Corporation
of Greater Bombay, (1992) 2 SCC 524, Kasturi
Vs Iyyamperum, (2005) 6 SCC 733, and Gurmit
Singh Bhatia Vs Kiran Kant Robinson, (2020) 3
SCC
773;
(3)
the
issue
of
the
suit's
maintainability could be raised by existing
defendants
without
respondent
no.1's
inclusion; (4) allegations of collusion did not
confer a legal right for impleadment, as NCLT
and NCLAT findings confirmed no resolution
authorized the sales and respondent no.1's
conduct was prejudicial; (5) the Supreme
Court's impleadment in the SLP was for
ensuring compliance with NCLAT's order, not
for the suit; (6) respondent no.1's application
appeared malicious, aimed at dismissing the
suit to harm the company. The court,
exercising revisional powers under Section 115
CPC, decided the issue without remanding, as
it involved a legal question, per Maulvi
Muhammad Vs Syed Husain, 1880 ILR 3 All.
203, and rejected the applications.

List of Cases cited: