Delhi High Court
Joginder Singh Lather vs State Of Nct Of Delhi Through … on 16 April, 2025
$~71 & 72
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Pronounced on: 16.04.2025
+ BAIL APPLN. 792/2025 & CRL.M.(BAIL) 381/2025
BHAVNA LATHER .....Petitioner
Through: Mr. Aditya Wadhwa, Mr. Siddharth
Sunil, Ms. Ragini Kapoor and Mr.
Arunav Sarma, Advs.
versus
STATE OF NCT OF DELHI .....Respondent
Through: Mr. Aman Usman, APP for State with
SI Mukesh Chauhan PS EOW,
Mandir Marg.
Mr. Sunil Dalal, Sr. Adv. with Mr.
Devesh Bhatia, Mr. Nikhil Beniwal,
Ms. Riya Rana and Ms. Shipra Bali,
Advs. for complainants.
+ BAIL APPLN. 793/2025 & CRL.M.(BAIL) 383/2025
JOGINDER SINGH LATHER .....Petitioner
Through: Mr. Aditya Wadhwa, Mr. Siddharth
Sunil, Ms. Ragini Kapoor and Mr.
Arunav Sarma, Advs.
versus
STATE OF NCT OF DELHI THROUGH
INVESTIGATING OFFICER .....Respondent
Through: Mr. Aman Usman, APP for State with
SI Mukesh Chauhan PS EOW,
Mandir Marg.
Mr. Sunil Dalal, Sr. Adv. with Mr.
Devesh Bhatia, Mr. Nikhil Beniwal,
Signature Not Verified
Digitally Signed BAIL APPLN. 792/2025 and connected matter Page 1 of 23
By:DEEPAK SINGH
Signing Date:19.04.2025
00:20:20
Ms. Riya Rana and Ms. Shipra Bali,
Advs. for complainants.
CORAM:
HON'BLE MR. JUSTICE VIKAS MAHAJAN
JUDGMENT
VIKAS MAHAJAN, J.
1. The petitioners have filed the present applications under Section 482
BNSS, 2023 read with Section 438 CrPC seeking Anticipatory Bail in
connection with FIR No. 59/2019 registered at PS-Economic Offences
Wing.
2. The allegations against the petitioners as noted from the charge sheet
are that the FIR was registered on the basis of the complaint made by one
Mrs. Suman Solanki along with other 54 complainants against the accused
company namely, M/s Prabhu Shanti Real Estate Private Ltd. It is stated in
the complaint that the complainants are the home buyers and they had
invested in the project namely, ‘PDM HI-Tech Homes’ launched by M/s
Prabhu Shanti Real Estate Pvt. Ltd., situated at Sector-3A, Bahadurgarh,
Jhajjar, Haryana.
It is stated that the complainants were induced to invest in the said
project by flashy newspaper advertisements and hype created for the said
project on social media by the accused persons. Most of the complainants
had deposited 90% of the consideration amount with the accused company,
however, the said amount has been misappropriated and siphoned off into
the sister companies of the accused company under the shadow of delivering
flats in the said project.
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By:DEEPAK SINGH
Signing Date:19.04.2025
00:20:20
In concluding part of the chargesheet, it is specifically stated that the
investigation has revealed that the directors of the accused company namely,
Bijender Singh Lather, Joginder Singh Lather, Ram Niwas Lather and Sajjan
Singh Beniwal had hatched a criminal conspiracy in the year 2008 and
promoted M/s Prabhu Shanti Real Estate Private Ltd. to cheat the general
public on the pretext of allotment of flats, plots etc.
It is further stated that the findings of the forensic auditor clearly
show that funds collected from the homebuyers were diverted to other
companies and projects. It is stated that the petitioners were directors of the
accused company at the relevant time, who were directly involved in the
decision-making process. In this way, all these people acted as a single unit
to execute the fraud of ‘PDM Hi-Tech Homes’.
3. Further facts, as noted from the record, which are relevant for
deciding the present petitions seeking anticipatory bail are that the FIR was
registered on 04.04.2019 and the petitioners appear to have joined the
investigation on few occasions i.e. on 22.08.2019, 11.10.2019, 10.11.2020
and 20.01.2021. The petitioners also claim to have made detailed
representations and supplied documents to assist the investigation.
4. It is the case of petitioner/Joginder Singh Lather that on 17.11.2020,
despite the fact that he had been cooperating with the investigation, he got to
know after seeing a notice in a newspaper that the learned CMM (Trial
Court) vide order dated 24.02.2020 issued NBWs, and subsequently vide
order dated 16.10.2020 had initiated the proceedings under Section 82 CrPC,
against him (1st coercive proceedings).
5. Soon thereafter, Joginder Singh Lather filed an anticipatory bail
application (1st anticipatory bail application) before the learned ASJ (North-
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By:DEEPAK SINGH
Signing Date:19.04.2025
00:20:20
West) Rohini Courts. However, on 02.12.2020 the learned ASJ (North-
West), Rohini while deciding the objection as to the territorial jurisdiction
raised by the complainant-Suman Solanki, held that either of the court,
North or North-West, has the jurisdiction to hear the applications. On
05.12.2020, hearing of the said bail application was adjourned on account of
the fact the territorial jurisdiction of the concerned court had been
challenged by complainant in Crl.M.C 2386/2020 before this Court.
6. On 09.12.2020, petitioner/Joginder Singh Lather also filed a Crl.M.C.
2412/2020 in this Court inter alia praying that the order dated 02.12.2020 to
the extent that it held that the Court of the North District, Rohini Courts too
had jurisdiction to entertain the bail application be set aside. The prayer was
also made to set aside the order dated 05.12.2020 whereby the interim relief
was denied to the petitioner by the learned ASJ (North-West) in view of the
submissions made before him that this Court vide order dated 04.12.2020
has stayed the proceedings of the bail application in the complainant/Suman
Solanki’s Crl.M.C. 2386/2020.
7. In petitioner/Joginder Singh Lather’s aforesaid Crl.M.C. 2412/2020,
he was granted interim protection from arrest vide order dated 09.12.2020
subject to his not leaving the country and joining the investigation as and
when required.
8. In the meanwhile, i.e., on 14.12.2020, Joginder Singh Lather sought
cancellation of proceedings initiated by the learned CMM under Section 82
CrPC vide aforesaid order 16.10.2020. On few dates matter was adjourned.
On 15.01.2021 the learned CMM yet again adjourned the matter and did not
decide Joginder Singh Lather’s application seeking cancellation of
proceedings initiated under Section 82 CrPC. Feeling aggrieved by the
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By:DEEPAK SINGH
Signing Date:19.04.2025
00:20:20
aforesaid two orders, the petitioner/Joginder Singh Lather filed another
Crl.M.C. 217/2021 inter alia praying for quashing/setting aside of order
dated 16.10.2020 and 15.01.2021 passed by the learned CMM/Trial Court.
9. It is the case of the petitioner/Joginder Singh Lather that on numerous
occasions i.e., on 20.01.2021, 10.03.2021, 10.09.2021 and 07.10.2021, he
joined the investigation. He also entered appearance before the learned Trial
Court either himself or through counsel on 15.01.2021, 03.02.2021,
20.02.2021, 05.03.2021, 27.03.2021, 21.06.2021, 07.07.2021, 27.10.2021
and 28.10.2021.
10. On 09.10.2021 1st anticipatory bail application of Joginder Singh
Lather was disposed of due to lack of territorial jurisdiction.
11. On 28.10.2021, the learned Trial Court dismissed the application filed
by Joginder Singh Lather seeking cancellation of process. Thereafter, on
02.11.2021, basis the application filed by IO, the learned Trial Court again
issued NBWs against Joginder Singh Lather. Thereafter, on 30.11.2021 the
learned Trial Court issued fresh proceedings under Section 82 CrPC (2nd
coercive proceedings).
12. Aggrieved by orders dated 28.10.2021, 02.11.2021 and 30.11.2021,
petitioner/Joginder Singh Lather filed another Crl.M.C. 14/2022. Vide order
dated 06.01.2022, this Court stayed the operation of the 2nd coercive
proceedings under Section 82 CrPC till next date of hearing, and the said
interim protection continued thereafter on numerous dates.
13. Sequel to above, the petitioner/Joginder Singh Lather moved 2nd
anticipatory bail application sometime in the second half of January, 2022.
On 27.01.2022, the said 2nd anticipatory bail application of Joginder Singh
Lather was dismissed. Aggrieved thereupon, Joginder Singh Lather filed his
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By:DEEPAK SINGH
Signing Date:19.04.2025
00:20:20
overall 3rd anticipatory application (1st anticipatory bail application before
this Court) on 03.03.2022. The same was, however, withdrawn by
petitioner/Joginder Singh Lather on 20.02.2024 with liberty to approach the
learned Trial Court.
14. On or about 29.04.2022, upon completion of investigation, the
chargesheet was filed before the learned Trial Court under Sections
406/420/120B of IPC. Thereafter, it appears that on 03.08.2023 the
complainants filed a protest petition before the learned Trial Court praying
to take cognizance of additional offences under Sections 409/467/468/471
IPC against the accused persons including the petitioners herein.
15. In the meanwhile, by way of judgment dated 19.11.2022 passed in
Crl.M.C. 217/2021, this Court set aside the 1st coercive proceedings under
Section 82 CrPC which were initiated by the learned CMM against Joginder
Singh Lather vide order dated 16.10.2020.
16. The learned CMM vide order dated 11.08.2023 took cognizance of
offences under Sections 409/420/467/471/120B IPC. Accordingly, summons
was issued against Bhavna Lather, whereas NBWs were issued against other
accused persons including petitioner/Joginder Singh Lather. The relevant
extract from the order dated 11.08.2023 reads thus:
” In view of above said facts and circumstances, the IO is
directed to file explanation that why action should not be
recommended against him.
Further, the accused persons did not join the
investigation and they are allegedly not available on their
addresses, therefore, in the considered opinion of this court,
the presence of accused persons (except accused
BhawnaLathar) cannot be secured except by issuance of
NBWs against them. According to IO, no NBWs or process
U/s 82 Cr.PC were obtained against Bhawna Lathar duringSignature Not Verified
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By:DEEPAK SINGH
Signing Date:19.04.2025
00:20:20
investigation, therefore, it will be appropriate that only
summons be issued against her.
In view of the fact that process U/s 82 CrPC were
executed / issued against accused persons except accused
Bhawna Lathar and the said accused persons are not
available on their addresses, therefore, issue NBWs against
accused persons except accused Bhawna Lathar through
concerned IO/SHO returnable on the date fixed.
Issue summons to accused Bhawna Lathar through
concerned IO/SHO returnable on 15.09.2023.”
17. The accused persons including the petitioners herein filed separate
revision petitions assailing the order dated 11.08.2023 passed by the learned
CMM. Vide order dated 14.09.2023, the learned Revisional Court stayed the
operation of the order dated 11.08.2023. However, subsequently vide
judgment dated 05.06.2024, the Revision Petitions were dismissed. The
learned Revisional Court, while observing that the accused persons are not
available at their addresses and further noting the submission of I.O. that the
presence of accused persons cannot be secured except by way of issuance of
NBWs, and that the petitioner/Bhavna Lather did not cooperate during the
investigation, directed the learned Trial Court to take appropriate steps in
accordance with law.
18. Accordingly, vide order dated 10.07.2024, the learned CMM issued
NBWs against the accused persons including the petitioners herein.
19. To be noted that this Court, in the meanwhile, vide order dated
14.03.2024 in Crl.M.C. 14/2022 had set aside the 2nd coercive proceedings
under Section 82 Cr.P.C., which were initiated against the petitioner /
Joginder Singh Lather by the learned Trial Court vide orders dated
28.10.2021, 02.11.2021 and 31.11.2021.
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Digitally Signed BAIL APPLN. 792/2025 and connected matter Page 7 of 23
By:DEEPAK SINGH
Signing Date:19.04.2025
00:20:20
20. Mr. Aditya Wadhwa, the learned counsel for the petitioners submits
that the apprehension of the petitioners stems from the learned Trial Court’s
wrongful initiation of coercive proceedings and erroneous invocation of
additional sections at the stage of taking cognizance.
21. He submits that the petitioners have duly cooperated with the
investigation and on numerous occasions joined the investigation.
According to him, it is not the case of the Investigating Agency that the
petitioners did not join the investigation. The chargesheet in the present case
has been filed against the petitioners as a non-arrest chargesheet. The
investigation qua the petitioners is complete and there is no requirement for
their custody.
22. He submits that it is trite law that anticipatory bail can be granted
even after filing of a chargesheet or cognizance thereof has been taken. In
support of this submission, he has placed reliance on the following
decisions: – i) Mahender Gambhir and ors. vs. SFIO, Bail Appln.
3414/2022; (ii) Vinod Kumar Sharma and Another vs. State of Uttar
Pradesh and Another, (2021) SCC OnLine SC 3225; (iii) Bharat
Chaudhary vs. State of Bihar, (2003) 8 SCCC 77, (iv) Kailash Chand Jain
vs. State of NCT of Delhi, 2018:DHC:2334 and (v) Musheer Alam vs.
State of Uttar Pradesh, SLP (Crl) No. 18081/2024, order dated 17.01.2025.
23. By placing reliance on decisions of Hon’ble Supreme Court in Shri
Gurbaksh Singh Sibbia & Ors. vs. State of Punjab, (1980) 2 SCC 565 and
Siddharam Satlingappa Mhetre vs. State of Maharashtra & Ors., (2022) 1
SCC 676, Mr. Wadhwa submits that the petitioners are entitled to the benefit
of presumption of innocence at this stage.
24. He submits that no coercive proceedings were ever initiated against
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By:DEEPAK SINGH
Signing Date:19.04.2025
00:20:20
Bhavna Lather during the investigation.
25. He submits that the petitioners having joined the investigation on
previous occasions and having filed the present applications, shows that they
wish to join the trial to prove their innocence. He contends that the
petitioners are also not a flight risk and the very fact that petitioners have
filed Crl.M.C. 7695/2024 challenging the order dated 05.06.2024 of the
learned Revisional Court, as well as the order dated 11.08.2023 passed by
the learned CMM, demonstrates that they are not absconders.
26. He submits that it is trite law that ordinarily when an accused is not
arrested during the investigation and the chargesheet is filed without arrest,
they ought not to be taken into custody upon entering appearance pursuant
to summons issued by the Trial Court.
27. He submits that a perusal of order dated 11.08.2023 demonstrates that
only summons was issued against Bhavna Lather, whereafter, she filed the
revision petition. He submits that upon dismissal of the revision petition on
05.06.2024, the Trial Court has erroneously directly issued NBWs against
Bhavna Lather vide order dated 10.07.2024 and initiated proceedings under
Section 82 CrPC on 27.09.2024.
28. He further submits that in the revision petition challenging the order
dated 11.08.2023, the learned Revisional Court on 14.09.2023 had granted
stay, which was operational till 05.06.2024 and therefore, there was no
occasion for Bhavna Lather to join proceedings in the Trial Court, and thus,
her non-appearance could not have been taken adversely.
29. He submits that the Trial Court also erred in not considering that not
only petitioner/Bhavna Lather duly cooperated during investigation but upon
dismissal of revision petition on 05.06.2024, also filed a quashing petition
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By:DEEPAK SINGH
Signing Date:19.04.2025
00:20:20
being Crl.M.C. 7695/2024 before this Court. Therefore, it cannot be said
that Bhavna Lather was evading any process of court and was absconding.
30. He submits that against petitioner/Joginder Singh Lather, the
prosecution has merely contended that he did not cooperate with the
investigation and did not give satisfactory answers. It is trite law that mere
non-cooperation or giving non-satisfactory answers cannot be the basis to
seek arrest of an accused person.
31. He submits as petitioner/Joginder Singh Lather had entered
appearance before the Trial Court either himself or through counsel on
15.01.2021, 03.02.2021, 20.02.2021, 05.03.2021, 27.03.2021, 21.06.2021,
07.07.2021, 27.10.2021 and 28.10.2021 and this Court had also set aside
two prior set of coercive proceedings against him. Moreover, the factum of
Joginder Singh Lather joining the investigation has also been affirmed by
this Court.
32. He submits the fact that Joginder Singh Lather had joined the
investigation; that this Court had set aside two prior set of coercive
proceedings against him and that he has also filed a Crl.M.C. 7695/2024
along with Bhavna Lather before this Court, shows that petitioner/Joginder
Singh Lather is also not an absconder.
33. He further submits that filing of previous anticipatory bail application
by Joginder Singh Lather and its subsequent withdrawal is not a bar to a
subsequent anticipatory bail application filed in changed circumstances as it
is trite law that there cannot be any estoppel against statutory rights. To
buttress this submission, he has placed reliance on the following decisions :-
(i) CIT (Central) vs. B.N. Bhattacharjee and Another, AIR 1979 SC 1725;
(ii) Corpn of Madras vs J. Periyanayaki and Ors., 2007 SCC OnLine Mad
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By:DEEPAK SINGH
Signing Date:19.04.2025
00:20:20
401 and (iii) Christian Michel James vs. Directorate of Enforcement, Bail
Appln. 2566/2021.
34. He submits that direct issuance of NBWs against petitioner/Joginder
Singh Lather vide order dated 11.08.2023 is in teeth of settled law that
generally the attendance of accused persons ought to be effected through
summons and only in the event of non-appearance should the courts resort to
issuance of bailable-warrants at first, followed by NBWs if required. To
buttress his contention, he places reliance on the decisions in Inder Mohan
Goswami & Anr. v State of Uttaranchal & Ors., (2007) 12 SCC 1.
35. He submits that even subsequent coercive proceedings initiated vide
orders dated 10.07.2024 and 27.09.2024 are erroneous as they fail to note
that the revision petition filed by Joginder Singh Lather was dismissed only
on 05.06.2024 and thereafter, he had filed a Crl.M.C. 7695/2024 before this
Court, which is still pending adjudication.
36. Lastly, he submits that even on merits the ingredients of offences
under Sections 406/409/420/463 IPC are not made out against the
petitioners.
37. On the other hand, Mr. Sunil Dalal, learned Senior Counsel for the
complainants opposes the applications under consideration. He submits that
the accused company has collected more than Rs.155 Crores from innocent
home buyers / complainants and siphoned off the same in their other
projects in furtherance of their dishonest intention. He submits that as the
collected monies were not utilized on the project, the accused company
could not handover the possession of the flats on time.
38. He submits that the petitioner/Joginder Singh Lather moved an
Anticipatory Bail application before learned ASJ, Special Judge, POCSO
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By:DEEPAK SINGH
Signing Date:19.04.2025
00:20:20
Act at Rohini Courts, Delhi which was dismissed as withdrawn on
14.09.2020. Subsequently, he applied for fresh Anticipatory Bail before
learned ASJ (North-West), Rohini Courts, Delhi, which also came to be
dismissed.
39. Mr. Dalal further submits that it is the discretion of the learned Trial
Court to issue summons or warrants having regard to the facts and
circumstances of each case. He contends that the learned Trial Court
considering repeated non-appearance of the petitioners, issued NBWs vide
order dated 10.07.2024 and subsequently initiated proceedings under section
82 CrPC vide order dated 27.09.2024.
40. Mr. Aman Usman, the learned APP submits that insofar as the
petitioner Joginder Singh Lather is concerned, though Section 41A CrPC
notices were issued to him and he joined the investigation, but he remained
non-cooperative. He did not provide the requisite information for getting the
trails of the investments of the complainants and tried to shift the liabilities
to other Directors.
41. He submits that non-cooperation of petitioner/Joginder Singh Lather
is evident from the fact that repeatedly coercive steps were initiated against
him.
42. He submits that the petitioners have remained non-cooperative
throughout the investigation. Hence, conduct of the accused persons has
remained suspicious and inappropriate. It is accordingly prayed that the
present applications should be dismissed.
43. I have heard the learned counsel for the petitioners, the learned senior
counsel for complainants, as well as learned APP for the State and have
gone through the material on record.
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By:DEEPAK SINGH
Signing Date:19.04.2025
00:20:20
44. In sum and substance, Mr. Wadhwa has argued that – (i) the
petitioners have duly joined the investigation on numerous occasions and
cooperated with the investigation at all stages; (ii) the petitioners were never
arrested during entire process of the investigation; (iii) the learned Trial
Court erred in issuing NBWs without first seeking issuance of
summons/bailable warrants against petitioners; (iv) the offences of which
cognizance has been taken are not made out against the petitioners; and (v)
the chargesheet was filed against the petitioners as a non-arrest chargesheet.
45. To be noted that both the petitioners, before filing of the present bail
applications, had filed Crl.M.C. 7695/2024 before this Court challenging the
learned Revisional Court’s order dated 05.06.2024, whereby the revision
petitions of the petitioners filed against the learned CMM’s order dated
11.08.2023 taking cognizance and issuance of summons to
petitioner/Bhavna Lather and issuance of NBWs against petitioner/Joginder
Singh Lather, was dismissed. The said Crl.M.C. 7695/2024 is still pending
adjudication and operation of the aforesaid orders dated 11.08.2023 and
05.06.2024 have not been stayed. Rather, subsequently, i.e., after filing of
aforesaid Crl.M.C., the proceedings under Section 82 CrPC have also been
initiated by the learned CMM vide his order dated 27.09.2024.
46. Incidentally, the present applications seeking anticipatory bail have
been filed by the petitioner on 20.02.2025.
47. Therefore, the question which confronts the Court is, whether the
Anticipatory Bail applications should be granted after issuance of NBWs,
and initiation of proceedings under Section 82 CrPC against petitioners
herein.
48. The answer is not far to seek. In Srikant Upadhyay & Ors. v. State of
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By:DEEPAK SINGH
Signing Date:19.04.2025
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Bihar & Anr., 2024 SCC OnLine SC 282, the Hon’ble Supreme Court was
confronted with the issue that whether pending the application of pre-arrest
bail, the proclamation under Section 82 CrPC could have been issued and
whether the anticipatory bail could be declined on account of issuance of
such proclamation. The Hon’ble Supreme Court observed that once the court
issues summons to a person, he is bound to submit himself to the authority
of law. It only means that though he will still be at liberty, rather, in his
right, to take recourse to the legal remedies available only in accordance
with law, but not in its defiance. It was held that when warrant of arrest is
issued or proclamation proceedings are initiated, the accused would not be
entitled to invoke, except in exceptional cases, the extraordinary power of
the court to grant anticipatory bail. It was further observed that granting of
anticipatory bail, unlike regular bail, is certainly not the rule. The relevant
part of the decision reads thus:
25. We have already held that the power to grant anticipatory bail
is an extraordinary power. Though in many cases it was held that
bail is said to be a rule, it cannot, by any stretch of imagination,
be said that anticipatory bail is the rule. It cannot be the rule and
the question of its grant should be left to the cautious and
judicious discretion by the Court depending on the facts and
circumstances of each case. While called upon to exercise the said
power, the Court concerned has to be very cautious as the grant of
interim protection or protection to the accused in serious cases
may lead to miscarriage of justice and may hamper the
investigation to a great extent as it may sometimes lead to
tampering or distraction of the evidence. We shall not be
understood to have held that the Court shall not pass an interim
protection pending consideration of such application as the Section
is destined to safeguard the freedom of an individual against
unwarranted arrest and we say that such orders shall be passed in
eminently fit cases. At any rate, when warrant of arrest or
proclamation is issued, the applicant is not entitled to invoke theSignature Not Verified
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By:DEEPAK SINGH
Signing Date:19.04.2025
00:20:20
extraordinary power. Certainly, this will not deprive the power of
the Court to grant pre-arrest bail in extreme, exceptional cases in
the interest of justice. But then, person(s) continuously, defying
orders and keep absconding is not entitled to such grant.
26. The factual narration made hereinbefore would reveal the
consistent disobedience of the appellants to comply with the orders
of the trial Court. They failed to appear before the Trial Court after
the receipt of the summons, and then after the issuance of bailable
warrants even when their co-accused, after the issuance of bailable
warrants, applied and obtained regular bail. Though the appellants
filed an application, which they themselves described as “bail-cum-
surrender application” on 23.08.2022, they got it withdrawn on the
fear of being arrested. Even after the issuance of nonbailable
warrants on 03.11.2022 they did not care to appear before the
Trial Court and did not apply for regular bail after its recalling. It
is a fact that even after coming to know about the proclamation
under Section 82 Cr. P.C., they did not take any steps to challenge
the same or to enter appearance before the Trial Court to avert the
consequences. Such conduct of the appellants in the light of the
aforesaid circumstances, leaves us with no hesitation to hold that
they are not entitled to seek the benefit of pre-arrest bail.
(emphasis supplied)
49. The Hon’ble Supreme Court in State of Haryana v. Dharamraj,
(2023) 17 SCC 510, after noting its earlier dicta in Lavesh v. State (NCT of
Delhi), (2012) 8 SCC 730, in unequivocal terms has held that a proclaimed
offender is not entitled to Anticipatory Bail. However, the Hon’ble Supreme
Court also exposited that in exceptional and rare cases, the Supreme Court
and the High Court being Constitutional Courts can consider a plea seeking
Anticipatory Bail, despite an accused person being declared as a proclaimed
offender. The relevant paras of the said decision reads thus:
“16. What the High Court (also) lost sight of was that the
respondent was a declared proclaimed offender. The High Court
notes, at para 28, that it was not dealing with the prayer seeking
quashing of the proclamation proceedings as the same were not
made part of the petition before it. As things were, the respondentSignature Not Verified
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By:DEEPAK SINGH
Signing Date:19.04.2025
00:20:20
was declared a proclaimed offender on 5.2.2021, and sought
anticipatory bail from the High Court only in October 2021. As
such, it was not correct for the High Court to brush aside such
factum, on the basis of averments alone, purporting to explain the
backdrop of such declaration by mere advertence to a similar
sounding name, in the petition before it, as recorded at paras 9 and
10 of the impugned order1. The declaration of the respondent as a
proclaimed offender, and such declaration subsisting on the date of
the impugned order, we are unable to agree with the High Court
that the respondent was entitled to “reform and course correct”.
17. The respondent, without first successfully assailing the order
declaring him as a proclaimed offender, could not have proceeded
to seek anticipatory bail. Looking to the factual prism, we are
clear that the respondent’s application under Section 438 CrPC
should not have been entertained, as he was a proclaimed
offender.
18. We may note that in Lavesh v. State (NCT of Delhi), this
Court was categoric against grant of anticipatory bail to a
proclaimed offender. In the same vein, following Lavesh is the
decision in State of M.P. v. Pradeep Sharma, where this Court
emphasised that a proclaimed offender would not be entitled to
anticipatory bail. Of course, in an exceptional and rare case, this
Court or the High Courts can consider a plea seeking anticipatory
bail, despite the applicant being a proclaimed offender, given that
the Supreme Court and High Courts are constitutional courts.
However, no exceptional situation arises in the case at hand.”
(emphasis supplied)
50. In this regard reference may also be had to the recent decision of
Hon’ble Supreme Court in Serious Fraud Investigation Office vs. Aditya
Sarda, 2025 SCC OnLine SC 764 wherein the Hon’ble Supreme Court was
confronted with somewhat similar situation. The court observed that
economic offences constitute a class apart as they involve huge loss of
public funds and such offences need to be viewed seriously, especially, at
the stage of entertaining anticipatory bail application of persons accused of
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economic offences. It was further observed that even if the accused has not
been arrested during investigation, still it is the discretion of the court taking
cognizance of the offence to issue warrants or summons, as it thinks fit.
Referring to the earlier decision of Hon’ble three Judges Bench in case of
Inder Mohan Goswami (supra), the Hon’ble Supreme Court explained that
in the said decision, it has been held that court is empowered to issue even a
non-bailable warrant to bring a person to the court, when it is reasonable for
the court to believe that the person will not voluntarily appear in the court or
the police authorities are unable to find the person to serve him with the
summons. It was further held that there cannot be a strait jacket formula to
first issue summons even in case of a warrant case, irrespective of the
gravity or seriousness of the offence. The Hon’ble Apex Court also observed
that the High Courts while considering anticipatory bail applications should
also consider the factum of issuance of non-bailable warrants and initiation
of proclamation proceedings seriously and not casually. The relevant extract
from the decision reads as under:
“23. In view of the above settled legal position, it is no more res
integra that economic offences constitute a class apart, as they have
deep rooted conspiracies involving huge loss of public funds, and
therefore such offences need to be viewed seriously. They are
considered as grave and serious offences affecting the economy of
the country as a whole and thereby posing serious threats to the
financial health of the country. The law aids only the abiding and
certainly not its resistants. When after the investigation, a
chargesheet is submitted in the court, or in a complaint case,
summons or warrant is issued to the accused, he is bound to
submit himself to the authority of law. If he is creating hindrances
in the execution of warrants or is concealing himself and does not
submit to the authority of law, he must not be granted the
privilege of anticipatory bail, particularly when the Court taking
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economic offences or heinous offences. In such cases when the
court has reason to believe that the person against whom the
warrant has been issued has absconded or is concealing himself
so that warrant could not be executed, the concerned court would
be perfectly justified in initiating the proclamation proceedings
against him under Section 82 Cr.P.C. The High Courts should
also consider the factum of issuance of non-bailable warrants and
initiation of proclamation proceedings seriously and not casually,
while considering the anticipatory bail application of such
accused.
xxxx xxxx xxxx
27. In none of the impugned orders, the High Court has bothered to
look into the proceedings conducted, and the detailed orders passed
by the Special Court for securing the presence of the Respondents –
Accused. It cannot be gainsaid that the judicial time of every court,
even of Magistrate’s Court is as precious and valuable as that of
the High Courts and the Supreme Court. The accused are duty
bound to cooperate the trial courts in proceeding further with the
cases and bound to remain present in the Court as and when
required by the Court. Not allowing the Courts to proceed further
with the cases by avoiding execution of summons or warrants,
disobeying the orders of the Court, and trying to delay the
proceedings by hook or crook, would certainly amount to
interfering with and causing obstruction in the administration of
justice. As held in Srikant Upadhay‘s case (supra), when warrant
of arrest is issued or proclamation proceedings are initiated, the
accused would not be entitled to invoke, except in exceptional
cases, the extraordinary power of the court to grant anticipatory
bail. Granting anticipatory bail is certainly not the rule. The
respondents-accused, who have continuously avoided to follow the
due process of law, by avoiding attendance in the Court, by
concealing themselves and thereby attempting to derail the
proceedings, would not be entitled to the anticipatory bail. If the
Rule of Law is to prevail in the society, every person would have to
abide by the law, respect the law and follow the due process of law.
28. A faint attempt was made by the learned counsels for the
Respondents to rely upon the decision in case of Tarsem Lal v.
Directorate of Enforcement Jalandhar Zonal Office9 , to submit thatSignature Not Verified
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if the respondents were not arrested by the SFIO during the course of
investigation till the filing of the complaint, the Special Court while
taking cognizance of the alleged offences should have issued a
summons only to the respondents-accused and not a warrant. The
said submission is bereft of merits. As discussed earlier, as per
Section 204, Cr.P.C. in a complaint case, which appears to be a
warrant case, the Court taking cognizance of the offence, has the
discretion to issue warrant or summons as it thinks fit, for causing
the accused to be brought or to appear before it. As held by three
Judge Bench of this Court in case of Inder Mohan Goswami (supra),
the Court is empowered to issue even a nonbailable warrant to bring
a person to the Court, when it is reasonable for the Court to believe
that the person will not voluntarily appear in the Court or the police
authorities are unable to find the person to serve him with a
summons. There cannot be a strait jacket formula, as sought to be
submitted by the learned advocates for the Respondents that the
Court must first issue a summons even in case of a warrant case,
irrespective of the gravity or seriousness of the offence. As well
settled by now, whether the attendance of the accused can be best
secured by issuing a bailable warrant or non-bailable warrant,
would be a matter, which entirely rests at the discretion of the
concerned Court. Although the discretion should be exercised
judiciously, diverse considerations such as the nature and
seriousness of the offence, the circumstances peculiar to the accused,
possibility of his concealing or absconding, larger interest of public
and state etc. also must be seriously considered by the court.
29. In the instant case, the Special Court considering the seriousness
of the alleged offences had initially issued bailable warrants,
however, the Respondents kept on avoiding the execution of such
warrants and did not appear before the Special Court though fully
aware about the pendency of the complaint proceedings against
them. The Special Court therefore had to pass detailed orders from
time to time for the issuance of non-bailable warrants, and thereafter
had also initiated the Proclamation proceedings under Section 82 of
the Code, for requiring respondents to appear before it. The High
Court however without paying any heed to the proceedings
conducted by the Special Court against the respondents, and
ignoring the well settled legal position, granted anticipatory bail to
the Respondents vide the impugned orders. As discussed earlier, theSignature Not Verified
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said Orders being perverse and untenable at law, cannot be allowed
to be sustained, and deserve to be set aside.
30. In that view of the matter, the respective impugned orders dated
29.03.2023 and 20.04.2023 passed by the High Court granting
anticipatory bail to the concerned accused who are the respondents
in these Appeals, are set aside. The respondents-accused are
directed to surrender themselves before the Special Court in one
week from today. It is needless to mention that their bail applications
as and when filed by them shall be decided by the Special Court in
accordance with law. We clarify that we have not expressed any
opinion on the merits of the case”
(emphasis supplied)
51. Now coming back to the facts of the case, notably, vide order dated
14.09.2023, the learned Revisional Court had initially stayed the operation
of order dated 11.08.2023 passed by the learned Trial Court, however, the
same was vacated by the learned Revisional Court vide order dated
05.06.2024, observing that the petitioners were non-cooperative during the
investigation and directed the learned Trial Court to take action against the
petitioners in accordance with law. Resultantly, vide order dated 10.07.2024,
NBWs were issued against the petitioners which could not be executed.
52. It is thereafter on 26.09.2024, that the Crl.M.C. 7695/2024
challenging the order dated 11.08.2023 of the Trial Court and order dated
05.06.2024 of the Revisional Court was filed. On the first date of hearing,
i.e., on 27.09.2024, no interim protection was granted to the petitioners.
However, on the very same day i.e. on 27.09.2024, the learned Trial Court
initiated process under Section 82 CrPC against the petitioners.
53. It is as late as on 20.02.2025 that the petitioners filed the present
applications seeking Anticipatory Bail, which means that for around 8
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months and 15 days1, the petitioners were evading the process of law.
54. It is evident that even after initiation of proceedings under Section 82
CrPC on 27.09.2024, the petitioners waited for five long months for filing
the present applications. Even after dismissal of the revision petition on
05.06.2024, petitioners did not challenge the said order for around 3 months
and 20 days and for reasons best known to them the petitioners chose not to
appear before the learned Trial Court after dismissal of their revision
petitions.
55. Therefore, the conduct of the petitioners does not bring their case
under the exceptional and rare circumstances warranting grant of
anticipatory bail to them despite issuance of NBWs and initiation of
proceedings under Section 82 CrPC against them.
56. Incidentally, the order dated 11.08.20232 passed by the learned Trial
Court and order dated 05.06.20243 passed by the learned Revisional Court
are under challenge before this Court in Crl.M.C. 7695/2024 and there is no
stay operating on the said orders. Even the orders dated 10.07.2024 4 and
27.09.20245 passed by the learned Trial Court issuing NBWs, and initiating
process under Section 82 CrPC, respectively, against the petitioners, as
admitted by Mr. Wadhwa, are premised on order dated 05.06.2024, which is
a subject matter of challenge in Crl.M.C. 7695/2024. The orders dated
10.07.2024 and 27.09.2024 are also under challenge before this Court in
separate petitions i.e. Crl.M.C. 1269/2025 filed by petitioner/Joginder Singh
Lather and Crl.M.C. 1276/2025 filed by petitioner/Bhavna Lather and on the
1
Counted from 05.06.2024, when the learned ASJ dismissed the Criminal Revision Petitions filed by the
petitioners against the order dated 11.08.2023 taking cognizance.
2
Order taking cognizance by learned CMM.
3
Order dismissing Criminal Revision against order dated 11.08.2023.
4
Order issuing NBWs against petitioners by learned CJM.
5
Order initiating process under Section 82 CrPC against the petitioners by learned JMFC.
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said orders too, there is no stay operating. Therefore, while deciding
petitioners’ plea of anticipatory bail, this Court cannot embark upon an
enquiry into the correctness or legality of order dated 05.06.2024 passed by
the learned Revisional Court and orders dated 10.07.2024 and 27.09.2024
passed by learned CJM and JMFC, respectively.
57. At this juncture, apt would it be to advert to the decisions relied upon
by Mr. Wadhwa as mentioned in para 22 above in order to contend that
application for anticipatory bail can be entertained even after filing of a
chargesheet or cognizance of offence has been taken. There is no quarrel to
the said proposition, but this Court, as noted in para 47 above, is confronted
with the question as to whether after issuance of NBWs and initiation of
proceedings under Section 82 CrPC, anticipatory bail can be granted to the
petitioners, and since the answer to the said question, in the facts and
circumstances of the present case, has been found in negative, therefore, the
reliance placed by Mr. Wadhwa on the said decisions is misconceived and
completely irrelevant.
58. Though reliance has also been placed by Mr. Wadhwa on the decision
of Inder Mohan Goswami (supra) to contend that the court should refrain
from issuing NBWs at the first or second instance, suffice it to note that the
Hon’ble Supreme Court in Aditya Sarda (supra) has observed while
explaining the decision in Inder Mohan Goswami (supra) that the court is
empowered to issue even a non-bailable warrant to bring a person to the
court when he does not appear voluntarily or the police authorities are
unable to find a person to serve him with the summons.
59. Insofar as reliance placed by the petitioners on the decisions: (i)
Mahender Gambhir (supra); (ii) Siddharth vs. State of Uttar Pradesh and
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Anr., (2022) 1 SCC 676; (iii) Satender Kumar Antil vs. CBI and Ors., 2022
SCC OnLine SC 825; (iv) Komal Chadha vs. SFIO, Bail Appln.
1740/2022, (v) Rana Kapoor vs. Directorate of Enforcement, Bail Appln.
559/2022 and (vi) Taranjeet Singh Bagga vs. SFIO, 2023 SCC OnLine Del
893, to contend that there was no occasion for the court to direct the arrest of
the petitioners since they had not been arrested by the investigating agency
either during the investigation or upon filing of the chargesheet, are
concerned, it may be reiterated at the cost of repetition that in a warrant case
it is the discretion of the court either to issue summons or warrants to secure
the attendance of the accused as held by the Hon’ble Supreme Court in
Aditya Sarda (supra). Further, the exercise of such discretion by the learned
Trial Court is already under challenge by way of separate petitions and the
fact remains that the NBWs, as well as, the process under Section 82 CrPC,
have not been cancelled and set aside till date. For the same reason, the
submissions of Mr. Wadhwa as summarised in para 44 above, which
essentially challenges the exercise of discretion by the learned Trial Court
for issuance of NBWs and initiation of coercive process under Section 82 of
CrPC, will not assume any relevance in the present applications.
60. In view of the above discussion, the present anticipatory bail
applications alongwith pending applications are dismissed and interim
protection granted vide order dated 28.02.2025 stands vacated.
61. The applications stand disposed of.
VIKAS MAHAJAN, J
APRIL 16, 2025/N.S. ASWAL
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By:DEEPAK SINGH
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