# NARINDERTIT SINGH SAHNI AND ANR v. UNION OF INDIA AND ORS

- **Citation:** [2001] Supp. 4 S.C.R. 114
- **Court:** Supreme Court of India
- **Decided:** 2001-10-12
- **Bench:** G.B. Pattanaik, Umesh C. Banerjee, S.N. Variava
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/narindertit-singh-sahni-and-anr-v-union-of-india-and-ors-18277
- **Pages:** 37

## Headnote

Constitution of India, 1950 :
Articles 32 and 21-Petition under Article 32-Maintainability.ofC
Infraction of Article 21-Accused involved in criminal cases all over the
country-Bail granted in some cases-However, detained in jail custody in
view of production warrants in other cases-Held, in such a case petition is
maintainable as opportunity of being heard of doctrine of natural justice
warrants fair opportunity-However, factual matrix does not show infraction
D
of Article 21-Deprivation of personal liberty of the accused persons is in
accordance with law.
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Article 32-Judicial Review-Power of-Implicit in the written
constitution-There is no fetter for such review-However, maintainability of
petition is an issue de hors the ultimate result in the petition.
Code of Criminal Procedure, 1973 :
Section 438-Anticipatory bail-Grant of-Accused alleged to have
cheated millions of depositers-Criminal cases pending against them all over
the country-Bail granted in some cases but benefit not availed. on account
of production warrants in other cases-Held, since no infraction of Article 21
is identified, petition for grant of anticipatory bail not sitstainable.
Section 205-Exemption from personal appearance-ls the prerogative
of Magistrate and thus cannot be sought from Supreme Court.
Penal Code, 1860-Sections l 20B and 420-Cheating-Different finance
companies alleged to have cheated depositers and criminal cases filed all over
the country-Held, as parties are different, amount of deposit and also period
of deposit is d~fferent, each individual deposit agreement is to be treated as
separate and individual transaction brought by allurement offinance compaliyH
Thus each constitutes separate o.ffence.
114
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N.S. SAHNI v. U.0.1.
115
Wonts and Phrases :
Expression 'Personal liberty'-Meaning of in the context of Article ·21,
Constitution of India, 1950.
A
Petitioners are the finance investment companies; its directors and
employees. They accepted deposists from large number of people but failed
B
to make repayment and numerous cases were filed against them under the
Penal Code and the negotiable Instruments Act which are pending in different
States. Petitioners got bail in one case but detained by reason of production
warrant in other cases and resultantly are languishing in jails, being deprived
of order of grant of bail. Thus the petitioners contended infraction of Article
C
21 of the Constitution. Hence the present writ petitions •
. The issues involved in these appeals are whether writ petitions are
maintainable under Article 32 by reason of supposed infraction of Article 21
and whether order of anticipatory bail under Section 438 Cr.P.C. ought to be
made available to the petitioners by reason of the deprivation of the liberty
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without there being any sanction of law in line with blanket order.
Dismissing the petitions, the Court
HEl1D: 1.1. Any person complalning of infraction of any fundamental
right guaranteed by the Constitution is at liberty to move this Court but the
rights that could b~ invoked under Article 32 must ordinarily be the rights
of the petitioner himself who complains of the infraction of such rights and
approaches the Court for relief and the proper subject for investigation
would however be as to the nature of the rights that is stated to have been
infringed. [143-C-D]
D.A. V. College, Bhatinda, etc. v. State of Punjab and Ors., [1971] 2 SCC
262, followed.
Ahmedabad Municipal Corporation v. Nawab Khan Guiab Khan & Ors.,
[1997) 11 sec 121, relied on.
1.2. Incidentally, power of judicial review being implicit in written
Constitution, question of there being any fetter for such review would not
arise and specially in the 21st century there ought not to be thwarting of such
a right nor even any hesitancy in that regard. Maintainability of the writ
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SUPREME COURT REPORTS
[2001] SUPP. 4 S.C.R.
petition is an issue de hors the ultimate result in the petition - presently the
justice oriented

## Text

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A
NARINDERTIT SINGH SAHNI AND ANR.
v.
UNION OF INDIA AND ORS.
OCTOBER 12, 2001
B
[G.B. PATTANAIK, UMESH C. BANERJEE AND S.N. VARIAVA, JJ.]
Constitution of India, 1950 :
Articles 32 and 21-Petition under Article 32-Maintainability.ofC
Infraction of Article 21-Accused involved in criminal cases all over the
country-Bail granted in some cases-However, detained in jail custody in
view of production warrants in other cases-Held, in such a case petition is
maintainable as opportunity of being heard of doctrine of natural justice
warrants fair opportunity-However, factual matrix does not show infraction
D
of Article 21-Deprivation of personal liberty of the accused persons is in
accordance with law.
E
F
G
Article 32-Judicial Review-Power of-Implicit in the written
constitution-There is no fetter for such review-However, maintainability of
petition is an issue de hors the ultimate result in the petition.
Code of Criminal Procedure, 1973 :
Section 438-Anticipatory bail-Grant of-Accused alleged to have
cheated millions of depositers-Criminal cases pending against them all over
the country-Bail granted in some cases but benefit not availed. on account
of production warrants in other cases-Held, since no infraction of Article 21
is identified, petition for grant of anticipatory bail not sitstainable.
Section 205-Exemption from personal appearance-ls the prerogative
of Magistrate and thus cannot be sought from Supreme Court.
Penal Code, 1860-Sections l 20B and 420-Cheating-Different finance
companies alleged to have cheated depositers and criminal cases filed all over
the country-Held, as parties are different, amount of deposit and also period
of deposit is d~fferent, each individual deposit agreement is to be treated as
separate and individual transaction brought by allurement offinance compaliyH
Thus each constitutes separate o.ffence.
114
-
N.S. SAHNI v. U.0.1.
115
Wonts and Phrases :
Expression 'Personal liberty'-Meaning of in the context of Article ·21,
Constitution of India, 1950.
A
Petitioners are the finance investment companies; its directors and
employees. They accepted deposists from large number of people but failed
B
to make repayment and numerous cases were filed against them under the
Penal Code and the negotiable Instruments Act which are pending in different
States. Petitioners got bail in one case but detained by reason of production
warrant in other cases and resultantly are languishing in jails, being deprived
of order of grant of bail. Thus the petitioners contended infraction of Article
C
21 of the Constitution. Hence the present writ petitions •
. The issues involved in these appeals are whether writ petitions are
maintainable under Article 32 by reason of supposed infraction of Article 21
and whether order of anticipatory bail under Section 438 Cr.P.C. ought to be
made available to the petitioners by reason of the deprivation of the liberty
D
without there being any sanction of law in line with blanket order.
Dismissing the petitions, the Court
HEl1D: 1.1. Any person complalning of infraction of any fundamental
right guaranteed by the Constitution is at liberty to move this Court but the
rights that could b~ invoked under Article 32 must ordinarily be the rights
of the petitioner himself who complains of the infraction of such rights and
approaches the Court for relief and the proper subject for investigation
would however be as to the nature of the rights that is stated to have been
infringed. [143-C-D]
D.A. V. College, Bhatinda, etc. v. State of Punjab and Ors., [1971] 2 SCC
262, followed.
Ahmedabad Municipal Corporation v. Nawab Khan Guiab Khan & Ors.,
[1997) 11 sec 121, relied on.
1.2. Incidentally, power of judicial review being implicit in written
Constitution, question of there being any fetter for such review would not
arise and specially in the 21st century there ought not to be thwarting of such
a right nor even any hesitancy in that regard. Maintainability of the writ
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SUPREME COURT REPORTS
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petition is an issue de hors the ultimate result in the petition - presently the
justice oriented approach and set-up a standard in accordance therewith
ought to be the guiding factor so far as the law courts are concerned. Refusal
to entertain cannot be in tune with the present approach and rather acts
contra. The requirement is a prima f acie satisfaction on the basis of the
available pleadings as to whether the judicial re:view prayed for under Article
~ \ '
t.
32 needs consideration, if it does, there cannot be any doubt as regards its
~aintafoability. [143-H; !44-A-CJ,
.
.
.
· i:3. In the instant case, the records depict that thousands of innocent
persons have fallen a prey in the methodology of working offinance companies
and firms but that does not mean and imply a denial of an opportunity of
being heard or considered. Doctrine of natural justice warrants a fair
opportunity. The writ petitioners herein have come up with a petition on the
ground that th~y have not been able to obtain benefit of the justice delivery
syste~ and thereby it has been alleged that Article 21 stands violated. Judicial
re~iew or maintainability of the petition under Article 32 cannot possibly be
doubte~ in any way. [144-C-E]
1.4. Arti'cle 21 of the Constitution postulates that no per.;on shall be
deprived of his personal liberty except according to the procedure established
by law. The expression 'personal liberty' admittedly is of widest possible
amplitude and cannot in any way whatsoever be, curbed or restricted without
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offending the constitutional mandate. [123-F-G]
Unni Krishnan, J.P. & Ors. v. State of Andhra Pradesh and Ors., (1993] i
sec 645, relied on.
1.5. The protecti~n of personal liberty stands expanded to make the
right to life under Article 21 more meaningful, the language of the Article
itself records an exception indicating thereby that a person may be deprived
of his liberty in accordance with procedure established by law and it is in this
sphere the Courts will scrupulously observe as to whether the same stands
differently and contra as regards the procedure established by law and in
the event it is not so done, it would be a plain e]l:ercise of judicial power to
grant redress to the petitioner. (144-H; 145-A-B]
1.6. In the instant case, there is no difficulty in appreciating the
grievance and grant .of relief but facts are too insufficient to come to a
_..._
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N.S. SAHNI v. U.0.1.
117
conclusion as regards the infraction of Article 21. Production warrants have
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been spoken of without any details whatsoever therefor • the reason offered
is that the petitioners, in fact, are not in the know of things ~eing behind the
prison bar and it starts pouring in from all parts of the country and in the
factual backdrop, it is a well-neigh impossibility to come to a finding as
regards the infraction of Article 21 and since in the factual matrix, no
infraction can be identified and thus question of sustaining the. plea· of
infringement of Article 21 would not arise. In any event the liberty of the
petitioners cannot be said to have been trifled with the absence of due process
of law. Deprivation, if any cannot be claimed to be not in accordance ~th
due process of law. [145-B-D]
1.7. An accused being involved in large number of criminal cases in
different parts of the country, if is not able to be released from custody even
on getting bail orders in some cases, itself would not tantamount to violation
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of the right ofa citizen under Article 21. The object of Article 21 is to prevent
encroachment cpon personal liberty by the executive save in accordance
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with law, and in conformity with the provisions thereof. n is, therefore,
imperative that before a person is deprived of his life or personal liberty, the
pro~edure established by law must strictly be follow~d and must not be
departed from, to the disadvantage of the person affected. Issuance of
production warrants by the Court and the production of accused in Court,
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in cases where he is involved is a procedure established by law and
consequently, the accused cannot be permitted to make a complaint of
infraction of his rights under Article 21. [147-D; E; H; 148-A]
1.8. while in the contextual facts, a petition under Article. 32 of t~e
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Constitution is maintainable but the petitioners are not entitled to any relief
by reason of insufficiency of available materials on record as regards the
issue of infraction of Article 21. (149-Gj
2.1. Even though the accused is able to get orders for bail ~rom differe.-it
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courts, where cases are pending but in view of the large number of cases
against the accused throughout the country, it has physically not become
possible to release the accused from the custody. If an accused facing a charge
under Sections 406, 409, 420 and 120-B is ordinarily not entitled to invoke
the provisions of Section 438 Cr.P.C. unless it is established that such criminal
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SUPREME COURT REPORTS
[2001] SUPP. 4 S.C.R.
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who is invoh·ed in thousands of cases in different ·parts of the country by
cheating millions of countrymen, can be given benefit of the privilege of
anticipatory bail as a matter ofroutine. In the case of JVG Group of Companies
and Kuber Group of Companies*, on the basis of which the present batch of
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cases have been filed, relief was granted that in the event of the arrest of the
petitioner in connection with any criminal case in his capacity as Managing
Director/Director of the G_roup of Companies, the Arresting Officer shall
release him on bail on his executing a bond to the satisfaction of the Arresting
officer which tantamounts to an order, invoking the provisions of Section
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438 Cr.P.C. In the manner in which these white-collared crimes are committed
and the extent to which it has pervaded the society at large, cases decided by
this Court earlier would not be of universal application and cannot be used
as a precedent for availing of the privilege in the nature of an anticipatory
bail. It would be a misplaced sympathy of the Court on such white-collared
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accused person whose acts of commission and omission has ruined a vast
majority of poor citizens of this Country. Though in the instant case, Court
may·bejustifiedindirecting release of the accused, taking stock of the entire
situation in the case and also that the petitioners could maintain a petition
under Article 32, but it would riot be justified in directing the release of such
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accused under a blanket order since such a course of action would perpetrate
gross injustice. [146-H; 147-A-C; 148-A-C]
Gurbaksh Singh Sibbia v. State of Punjab, AIR (1980) SC 1632, followed.
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2.2. Grant of anticipatory bail, under Section 438 of the Cr.P.C. is
made applicabie only in the event of there being an apprehension of arrest.
In the instant case petitioners are all inside the prison bars upon arrest
against all cognizable offences, therefore, question relieving the petitioners
from unnecessary disgrace and harassment would not arise. Also, the petition
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·cannot be sustained as regards the issue of anticipatory bail under Section
438 ¢r. P.C. since no infraction can be identified. [145-E-F]
Kartar Sinf?h v. State of Pun.jab, [1994) 3 SCC 569 and Supreme Court
Legal Aid Committee Representing Undertrial Prisoners v. Un.ion of India &
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Ors., [1994) 6 sec 731, distinguished.
.. .,
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N.S. SAHNI v. U.0.1.
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Shaheen We(fare Association v. Union of India & Ors., [1996] 2 SCC 616;
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R.D. Upadhyayv.StateofA.P. &Ors., [1996]3SCC422and "Common Cause"
A Registered Society. through its Director v. Union of India & Ors., [1996] 4
sec 33, refetred to •
3. Right of an accused to have speedy trial is now recognised as right
under Article 21. The procedural fairness required by Article 21, including
the right to a speedy trial has to be observed throughout and to be borne in
mind. However, while no relief is granted to the accused persons Central
Government should evolve certain formula or procedure, so that the accused
will not complain of undue harassment on account of protraction of their
cases and the persons deceived who have filed complaints, will be satisfied
with the early conclusions of the trial. [148-D; F]
Sheela Barse and Am: v. Union of India & Ors., AIR (1986) SC 1773,
referred to.
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4. Direction of exemption from personal appearance cannot be had
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from this Court since it is within the powers of the Magistrate and in his
judicial discretion to dispense with the personal appearance of an accused
and as such be it provided here that it would be open to the party to apply to
the concerned trial/sessions court for such exemption and in the event of
there being such an application, the same can be disposed of in accordance
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with law. [149-D]
Mis. Bhaskar Industries Ltd. v. Mis. Bhiwani Denim & Apparels Lid. &
Ors., JT (2001) 7 SC 127, referred to.
5. Each individual deposit agreement shall have to be treated as separate
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and individual transaction brought about by the allurement of the financial
companies, since the parties are different, the amount of deposit is different
as also the period for which the deposit was effected. It has all the
characteristics of independent transactions and thus the contention of
petitioners as regards the issue of single offence cannot be concurred with.
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[149-B]
CRIMINAL ORIGINAL JURISDICTION : Writ Petition (Crl.) Nos.
245-246 of 2000.
Under Article 32 of the Constitution of India.
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SUPREME COURT REPORTS
WITH
(2001) SUPP. 4 S.C.R.
W.P. (Cr!.) Nos. 249, 270, 405, 421, 433-435/2000, 57 and 63-64 of
2001.
.
•·
K.N. Raval, Additional Solicitor General, Shanti Bhushan, D.D. Thakur,
S.S. Javali, P.P. Malhotra, S. Balakrishnan, K.T.S. Tulsi, S. Markandeya, R.S.
Suri, Vikas Pahwa, Shally Bhasin Maheshwari, Rishi Maheshwari, S. Tabrez,
R.K. Maheshwari, Bahar U. Barqi, Amit Dhingra, M. Choudhary, P.H. Parekh,
Vipin Gogia, Jaspreet Gogia, T.S. Arora, D.K. Garg, N.P. Midha, Manjoor Ali,
Ms. Ritu Puri, V.R. Thangavelu, Rajiv Nanda, Sushma Suri, Ashok Bhan for
D.S. Mabra, Smt. Rev'athi Raghavan, Ms. Shweta Garg, Sunitha Choudhary,
(Sunii Kr. Jain, V. Hansaria,) for Mis. Jai~ Hansaria & Co., Mahabir Singh,
D.N. Goburdhan, Ms. Suruchi Aggarwal, H. Wahi, Ms. Anu Sawhney, Smt.
C. Markandeya, Anupam 'Iyagi, Sunil Kumar Bharti, Atul Kumar, Ranbir
Yadav, .Anil Hooda, V.G. Pragasam, Jayshree Anand, Addi. Adv. General for
State of Punjab, G. Sivabalamurugan, Rajeev Sharma, S.S. Shinde, for S.V.
D~shpan~e, Ranji Thqmas for Javed M. Rao, J.R Das, D.P. Mohimty, K.K.
Mahalik, Pramod. Swarup, Praveen ~warup, Ms. Pareena Swarup, Prashant
Choudhary, A.S. Pundi~, V Singh, Prakash Kumar Singh, V.K. Shukla, Anil
Shrivastav, T.C. Sharma, Ms. A. Subhashini, G. Prakash, Ms. Kamini Jaiswal,
Dr. Nafis A. Siddiqui, .Appli<.:;ant-in-Person, .B.B. Singh, V. Krishna Murthy,
Ms. Vibha Dutta Makhija, Alok Bhachawat, Uma Nath Singh, Sanjay R.
,,
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.
Hegde, S.M. Garg for the appearing parties .
. The Judgment of the Court was delivered by
BANERJEE, J. This batch of writ petitions under Article 32 of the
Constitution by reason of supposed infraction of Article 21, were moved before
this ·cc>uri for the ·grant ·~f ari. order for bail .in the nature as prescribed under
Section 438 ·er. P. Code, andin line with the orders dated 28.3.2000 in W.P.
(Crl.) No. 256 of 1999 .and dated 5.5.2000 in W.P. (Crl.) Nos. 72-75 of 2000
pas~ed earlier by this C~urf. To crystalize the issue, the orders as passed earli~r
ought to b~ noti~ed af this juncture. The first of the two orders read as below
: (JVG'Grciup of Companies: Writ Petition (Crl.) No. 256 of 1999)
...
"It is not possible for us to order that all his cases pending in different
st'ates should be consolidated into one and brought before one court.
That would impose unwarranted and unnecessary hardships on the
witness and investigating agency spread over to those different States.
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N.S. SAHNI v. U.0.1. [BANERJEE, J.]
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Nor are we inclined to order the Central Bureau of Investigation to
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take up the investigation in respect of all cases, and further that he
would make himself available on any date when his presence is
imperatively needed in that court.
3. We permit the petitioner to move the appropriate High Courts for
bringing all the cases pending in different courts within the territorial
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jurisdiction of that High Court to one single court or more than one
court (depending upon the number of cases or the width of the area
of the State is concerned).
4. This order will come into effect only if the petitioner would
surrender his passport in this court. Shri Shanti Bhushan, learned
senior counsel expressed a doubt that petitioner would have already
surrendered his passport before another court pursuant to the order
passed. In that case he can satisfy the Registrar General of this Court
by an affidavit of the situation and the Registrar General can intimate
the jail authorities concerned of that position.
5. We make it clear that it is open to the investigating agency in any
case to move for cancellation of bail if any such investigating agency
finds that petitioner is misusing the liberty granted by this order.
In view of the above order we direct the jail authorities of the jail
in which he is presently kept to release him forthwith on Registrar
General of this Court intimating the jail authorities regarding the
surrender of his passport as indicated above.
It is needless to say that this order will not be treated as a precedent
and is passed only on the peculiar facts and circumstances of this case.
The Writ Petition is disposed of accordingly."
This Court also on a petition under Article 32 of the Constitution in
Kuber Group of Companies (Writ Petition Nos. 72-75 of 2000 being the 2nd
order as noticed hereinbefore) also passed a similar order to the following
effect:
"1. If the petitioner is arrested in connection with any criminal case
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in his capacity as managing director/director of JVG Group of
companies the arresting officer shall release him on bail on his
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[2001] SUPP. 4 S.C.R.
executing a bond to the satisfaction of the arresting officer.
2.
Such relief shall be made after getting an assurance from him
that he will be present in the court concerned on the days when
his case is posted. However, we make it clear that it is open to
the petitioner to apply to the court concerned for exempting him
from personal appearance on condition that a counsel on his
behalf would be present on such posting dates and he would
not dispute his identity as the particular accused in that case,
and further that he would niake himself available on any date
when his presence is imperatively/needed in that court.
3.
We permit the petitioner to move the appropriate High Courts
for bringing all the casef: pending in different courts within the
territorial jurisdiction of that High Court to one single court or
more than one court (depending upon the number of cases or
the width of the area of the State is concerned).
4.
This order will come into effect only if the petitioner would
surrender his passport in this Court. Shri Shanti Bhushan,
learned senior counsei expressed a doubt that petitioner would
have already surrendered his passport before another court
pursuant to the order passed. In t~at case he can satisfy the
Registrar General of this court by an affidavit of the situation
and the Registrar General can intimate the· jail ·authorities
concerned of that position.
5.
We make it clear that it is open to the investigating agency in
any case to move for cancellation of bail if any such investigating
agency find that petitioner is misusing the liberty granted by this
order.
AND THIS COURT has further ordered to the jail authorities of the
jail in which petitioner/detenues P.K. Sharma S/o. Deep Chand
Sharma (In Judicial Custody since 4.6.1999), Mrs. Roweena Sharma
W/o. P.K. Sharma (In Judicial custody since 17.7.1999) and M.M.
Sharma, S/o. Deep Chand Sharma (In judicial custody since 6.7.1999)
confined in Central Jail No. 1, Tihar Jail, New Delhi, to release them
forthwith as the condition of surrender of passports have been fulfilled
to the satisfaction of learned Registrar General of the Hon'ble court
'
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N.S. SAHNI v. U.0.1. [BANERJEE, J.]
123
who has perused the affidavit in this Registry to the above effect. AND
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THIS COURT has also observed that his order will not be treated as
precedent and is passed only on the peculiar facts and circumstances
of this case.
AND THIS COURT DOTH FURTHER ORDER THAT THIS ORDER
be punctually observed and carried into execution by all concerned."
To put the records straight and complete, be it noted however that these
matters were placed before this Court for similar orders, but since the Division
Bench of two Hon'ble Judges of this Court delving into the matter, felt some
difficulty to lend concurrence to the orders as above, the Bench refen-ed the
matter to the learned Chief Justice for constitution of a larger Bench and in
terms therewith, this Bench stands constituted for disposal of this batch of
petitions under Article 32 of the Constitution.
Incidentally, several writ petitions have been filed invoking jurisdiction
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under Article 32 of the Constitution of India by reason of supposed infraction
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of Article 21 with several identical prayers - the main being grant of a writ
of mandamus or any other appropriate writ in the nature of an order under
Section 438 of the Code of Criminal Procedure, directing that in the event the
petitioner is arrested in connection with any criminal case, the arresting officer
shall release him on bail on his execution a bond to the satisfaction of the
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arresting officer. As regards the other prayers, we shall defer it presently since
the cardinal issue relates to the first prayer. As noticed above, supposed
infraction of Article 21 was taken recourse to substantiate the invocation of
Article 32.
Needless to record that Article 21 of the Constitution postulates that no
person shall be deprived of his personal liberty except according to the
procedure established by law. The expression 'personal liberty'; admittedly is
of widest possible amplitude and cannot in any way whatsoever be, curbed
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or restricted without offending the constitutional mandate. The decision of this
Court in Unni Krishna' case ( Unni Krishnan, J.P. & Ors. v. State of Andhra
G
Pradesh and Ors., [1993] 1 SCC 645) lends concurrence to the observations
as above.
We are not called upon to deal with the true scope or the total ambit
of Article 21: The petitioners have taken recourse to the Article stating therein
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SUPREME COURT REPORTS
[2001] SUPP. 4 S.C.R.
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that in the event they are not granted any relief as prayed for, the petitioners
resultantly would suffer the consequences which stand negated by the
constitutional mandate.
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The relief spoken of however pertains to Section 438 of Criminal
Procedure Code. It is noteworthy that the 41st report of the Law Commission
recommended for the first tin:ie inclusion of a provision of what is called
anticipatory bail (vide Section 438 Cr. P.C.). Section 438 contemplates an
applicatfon by a person on an apprehension 'of arrest in regard to the
commission of a non-bailable offence: the object being to relieve a person from
unnecessacy harassment or disgrace and it is granted when the Court is
otherwise convined that there is no likehood of misuser of the liberty granted
since he would neither abscond nor take such step so as avoid due process
of law.
In Gurbaksh Singh Sibbia etc. v. State of Punjab, AIR (1980) SC 1632,
the Constitution bench of this Court very succint.:tly laid down the difference
between right of an individual to his liberty and the right of the Police to
investigate into crimes. This Court in paragraph 37 observed that a blanket
order of anticipatory bail may cause some interferen9e in the matter of
investigation. This Court observed :
·: ... A Blanket order of anticipatory bail is bound to cause serious
interference with both the right and the duty of the police in the matter
of investigation because, regardless of what kind of offence is alleged
to have been committed by the applicant and when, an order of bail
which comprehends allegedly unlawful activity of any description
whatsoever, will prevent the police from arresting the applicant even
if he commits, say, a murder in the presence of the public. Such an
order can then become ::i charter of lawlessness and a weapon to stiffle
prompt investigation into offences which could not possibly be
predicated when the order was passed. Therefore, the court which
grants anticipatory bail must take care to specify the offence or
offences in respect of which alone the order will be effective. The
power should not be exercised in a vacuum."
Having however, discussed the outlying features of the grant of
anticipatory bail and upon due consideration of the caution exercised by this
Court in Gurbaksh Singh (supra), let us advert to the factual score presently
before this Court.
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N.S. SAHNI v. U.0.1. [BANERJEE, J.]
125
0
The petitioners charged with offences under different provisions of law,
are admittedly in custody: no complaint or grievance can be made against the
issuance of charge-sheet by reason of the contextual facts of the writ petition.
Facts relating to the charge-sheet as high lighted by both the parties during
the course of hearing would be adverted to shortly, suffice however to record
that the liability shall have to be adjudicated: The petitioner's culpability in
the offence if any, shall have to be deciphered and if this bC the foundation
of launching of prosecution, the issue then as contended arises, viz., where
is the scope of invoking Article 21 of the Constitution -
Has the Article been
incorporated in the Constitution to safeguard the offenders? These are few of
the issues raised by the learned Additional Solicitor General, Mr. Rawal,
appearing for the Union of India. The answer obviously cannot be in the
affirmative provided however, there is due sanction of law in the matter of
having the petitioners in the custody, but only upon scrutiny of facts. True,
Section 438 stands included in the Code, but its applicability would be rather
in rarity than generality.
It is at this juncture we feel it inclined to take recourse to a short tabular
format (in W.P. (Crl.) Nos. 245-246 of 2000) depicting the factual score, rather
than a longish narration form for appreciating the contentions advanced in the
matter under consideration. The petition herein is involved as principal accused
person in:
(1)
(2)
(3)
(FIR No.)
Charge under Section
Police Station
1006/98
U/s 420 IPC
PS Tilak Nagar
149/98
U/s 420/406/409/120 IPC
PS Prasad Nagar
257/98
U/s 420/406/409/120 IPC
PS Karol Bagh
264/98
U/s 420/406/409/120 IPC
PS Pras,id Nagar
209/98
U/s 420/406/120B IPC
PS K. Gate
407/98
U/s 420/406/409/120B IPC
PS K. Gate
355/99
U/s 420/406/409/120B IPC
PS K. Gate
16/2000
U/s 420/406/409/120B IPC
PS K. Gate
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B
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SUPREME COURT REPORTS
[2001] SUPP. 4 S.C.R.
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Apart from the above, there are 142 other complaints against the
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petitioner filed under section 138 of the Negotiable Instruments Act. with
regard to which production warrants have been served in Tihar Jail. (Emphasised
to high-light the same)
There are further 10 FIRs pending investigation in Dehradun: Four
matters are pendi11g before the Consumer Forum at Delhi and 9 others just
o~tside the Delhi Area: Apart therefrom compiaint cases. are pending in
Aligarh, Mainpuri, Bulandsahar, Alwar, Bharatpur, Jaipur, Ludhiana, Gurgaon;
Naham Dist. (H.P.) Dibrugarh (Assam), Fandabad, Jagadhari, PalwaL Besides
howe~er the FIRs mentioned above in Dehradun, there are 40 other compiaints
in pehradun under section 138 of th~·Negotiable Instruments Act. There are
alsq innumerable production warrants_ that have been served on the supdt,
Tihar Jail, mainly under Section 138 of the Negotiable· Instruments act.
Ho~ever, it is stated that the petitioner being in custody, has not been able
to secure any information about the nature of cases• and is totally dependent
upon the authorities to produce him or not to produce him before a particular
cburt. But why these proceedings? Th·e answer however is not very far to seek.
It appears that the Petitioner No. 1 happens to be the Managing Director of .
Mis. Okara Agro Group of Companies. The records depict that the petitioner
No. 2.0kara Agro Industries Ltd., commenced its business w.e.f. 7.5.1993 upon
incorporation under the provisions of Companies Act 1956. The records further
depict that on 18th Dec., 1997 the Securities & Exchange Board of India
(SEBI) issued a. notice in the daily newspaper stating that tht: Central
Government has decided an appropriate regulatory framework for regulating
the entities issuing instruments such as Agro bonds, plantation . bonds etc.
The notice also prohibited investment scheme including mutual funds
from· sponsoring schemes till the regulations are notified by SEBI. It was
provided further that till the regulations are notified, all collective schemes
which were operating should continue with their operation till the regulatic>ns
are notified.
On 25.3.1998, a FIR bearing No. 149/98 was registered at P.S. Prasad
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Nagar under sections 420/406/409/120-B IPC against the company and its
directors for accepting deposits from large number of people in different
schemes and for failure to make repayment inspite of requests -
charge-sheet
was subsequently filed by the Crime Branch of Delhi Police in the Court of
Metropolitan Magistrate, Tis Hazari. Subsequentiy, on 28.4.98 a FIR being No.
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264/98 was registered at P.S. Prasad Nagar on the complaint of one Om Prakash
N.S. SAHNI v. U.O.I. [BANERJEE, J.]
127
Mishra against the petitioner alleging that the latter had defrauded and cheated
him and other members of his family in accepting money. in various schemes
of the company and when the complainant asked for the money, the post-dated
cheques issued by the company were dishonoured since accounts were closed.
It is in regard to the FIR 264/98 as noticed above that the petitioner No. 1
was arrested by the Crime Branch of Delhi Police on 29.6.1998.
The factual context further depict that in September, 1998, a Public
Interest Litigation being No. CWP No. 3352 of 1998 (S.D. Bhattacharya &
Ors. v. SERI & Ors.) was filed in the Delhi High Court against 700 planation
companies wherein the petitioner was added as party respondent as Respondent
No. 8. In the Writ Petition the High Court however, passed an order on
7.10.1989 restraining the respondent companies from selling and disposing of
or alienating their immovable properties and the same was also made applicable
to the directors as well. The recorcis depict that the petitioner on 19.12.98 was
granted interim bail by the Additional Sessions Judge but the same stands
stayed by the order of Delhi High Court dated 8th March, 1999.
The High Court however, on· 26th May, 1999 during the course of
hearing of Criminal Misc. Petition No. 4730 of 1998 stated that the bail to
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the petitioner could only be granted if sufficient money could be made
available for the purposes of making repayments to the investors and in that
context directed the petitioner to file a scheme for payment or proposal for
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payment and it is in that perspective that on 7th October, 1999, the petitioners
moved Misc. Application seeking permission to sell certain properties of the
petitioner to repay the amount to the investors. The Delhi High Court, however
subsequently while disposing of the Crl. Miscellaneous Application directed
the Commissioner Qf Police to hand over the investigation to a very senior
police officer assisted by a team of sufficiently large number of investigating
officers to e:isure the conclusion of the investigation within 4 months. The
Crime Branch was also directed to file the list of 71 properties including the
properties of sister concerns and the financial stability and the liquid assets
of the company in the form of a report to the High Court within 6 weeks :
Factual score thus very candidly exposed the popular English saying-ingenious
are the ways, where the genius works!
It is on these set of facts that Mr. Tulsi, the learned senior Advocate
appearing in support of some of these writ petitions contended that this long
incarceration of the petitioners in jail cannot but be ascribed to be a situation
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SUPREME COURT REPORTS
[2001] SUPP. 4 S.C.R.
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which runs counter to the mandate of the Constitution under Article 21. Mr.
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Tulsi contended that the petitioner No. 1 being the Managing Director of
Mis: Okara Group of Companies is sought to be charged under Section 420
IPC with the aid of Section l20B without there being any material to indicate
that the petitioner had either the knowledge or the intention to assit the other
accused in commission of the offence. In any- event, it is submitted that the
offence of conspiracy being in the nature of a continuing offence, its inclusion
would be sufficient to establish the connection of one offence with the other
for the purpose of converting all the offences into a single offence or in the
alternative, into the kind of offence which could only have been committed
in the course of the same transaction, within the meaning of section 220 of
the·Code of Criminal Procedure - Admittedly a su~mission of some effect and
this is so irrespective of the factum of about 250 number of FIRs lodged
throughout the country. We are however not making any observation in regard
thereto presently. Incidentally, Mr. Shanti Bhushan appearing in support of
some of the other petitions also contended more or less in the similar vein
as regards the· issue of single offence and we do deem it expedient to deal
with the same at a stage later in the judgment since we do deem it fit to note
some preliminary submissions, which are of some consequences as advanced.
by the Respondents at this juncture.
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Mr. D.N. Goburdhan, learned Advocate, appearing for the Investors'
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Forum, attributed .the writ petition as a classic case of abuse of the process
of law~ since there is neither any violation of guaranteed right under Part III
of the Constitution nor a relief under Section 438 Cr.P.C. can however be
termed to be a guaranteed right. The writ petitioners' conduct as a matter of
fact, it has been contended, disentitles him for any discretionary relief from
the Court. Mr. Goburdhan with his usual felicity of expression was rather
emphatic in contending that petition for bail under Sections 437 and 439
Cr.P.C. has been converted· into a petition under Article 32. ·It has been
contended that the petitioners' bail was rejected by the MC1.gistrate's Court and
the interim bail for 90 days granted by the learned Sessions Judge was also
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challenged in the High Court by the investors' forum and the same stands
suspended - Secondly Mr. Goburdhan contended that whilst the petition is
pending before the High Court this writ petition was filed. According to Mr.
Goburdhan that the writ petitioner in connivance with his family who all were
Directors of the company have totally siphoned off the monies collected from
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the public. The intention to cheat and the actus rea of cheating is complete
.......
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N.S. SAHNI v. U.0.1. [BANERJEE, J.]
129
in all force. All other Directors who are family members are absconding and
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have been declared as proclaimed offenders by the Court.
In any event, Mr. Goburdhan contended that Articles 21 and 438 Cr.P.C.
are not only mutually inconsistent with each other but cannot go hand in hand
with each other and the methodology adopted in the. garb of a petition under
Article 32 for infraction of Article 21, cannot but be a handy work and
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. ingenuity of the writ petitioners. The amount of money siphoned off from out
of the deposits of the public in general by the petitioners does not permit the
Court under Article 32 or under any other provision to grant any relief to the
petitioners herein.
Mr. Rawal, the learned Additional Solicitor General opened up a new
vesta in the matter and submitted that in an application for anticipatory bail
the gravity of the offences involved ought to be the prime consideration since
thousands of investors have lost their lives' savings, after being duped by the
petitioners - It is an "economic murder" of an entire community of people and
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thus has necessarily to be dealt with utmost severity. The two earlier judgments
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of this Court spoken about cannot be the guiding feature, since the same were
pronounced in the facts and circumstances of each case: Secondly in both the
decisions this Court was cautious enough to record that the same would not
be treated as a judicial precedent in any way whatsoever and in view of such
express recording, question of the same or a similar order being passed in any
other matter would not arise. Mr. Rawal contended that the gravity of massive
economic genocide c.,annot be belittled by terming it as a major offence of
cheating or depriving someone of his property. The victim is deprived of his
economic life. The crime is no less heinous than putting an end to the life
of a person. A large number of suicides which follow such white collared crime
is indicative of the magnitude of the crime involved. Therefore, the fact that
a maximum punishment of 7 years is prescribed for a single offence of cheating
cannot be pressed into service by the petitioners for seeking relief. The
activities of the concerned economic offenders are as a matter of fact spreading
in several States. Very often after starting their operations in one State and
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by luring investors of high returns, to finance those returns fresh funds are
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raised in some other State. To pay the promised high returns in tile second
State, funds are raised in a third State and so the channel continues. Each act
of cheating, therefore, constitutes a separate offence and the attempt to say
that it is only one advertisement which results in to multitude of consequential
deprivation of property is an endeavour to mis-lead this Court. Without
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SUPREME COURT REPORTS
(2001] SUPP. 4 S.C.R.
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however, expressing any opinion in the matter presently, neither we should
also, but the eloquence of Mr. Rawal seems to be of unmatched quality both
as regards the legal issues as also on the factual context.
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As regards the issue of maintainabiHty of the writ petition under Article
32 of the Constitution by reason of infraction of Article 21, it has been the
contention of Mr. Rawal that there has been no viol.ation of procedure
established by law arid thus taking recourse to die remedy of institution of the
present writ petition on this score is wholly purposive and with motive not
far to seek. Article 21 prohibits denial of liberty except according to the ·
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. procedure established by law - in the contextual facts Mr.