Prosecution Can’t Only Recite From Complaint To Oppose Bail In Cases With Additional Conditions For Bail: Delhi High Court

The Delhi High Court has observed that the prosecution cannot only recite from a complaint or simply say that it has material against an accused in respect of those offences for which twin conditions are stipulated in a statute for grant of bail.

Justice Anup Jairam Bhambhani said that the prosecution must show how the material collected during investigation supports allegations in the complaint and how they apply against the accused.

“To reiterate, the opposition by the public prosecutor must be reasoned opposition, supported by valid and relevant reasons. When the public prosecutor opposes a bail plea, he would have to establish foundational facts sufficiently to dislodge the presumption of innocence, and it is only then that the onus of satisfying the stringent twin-conditions would shift onto the accused. To be clear, there is no statutory mandate for the court to depart from the presumption of innocence,” the court said.

The court also interpreted section 212(6) of the Companies Act, 2013 which requires that the “additional twin-conditions” are to be satisfied while considering grant of bail.

The provision states that no accused shall be released on bail unless the Public Prosecutor has been given an opportunity to oppose the bail application and where, on such opposition, the court is satisfied that there are reasonable grounds for believing that the accused is not guilty of the offence and is not likely to commit any offence while on bail.

Analyzing the provision, Justice Bhambhani said that the twin-conditions do not imply that bail must reflexively, immediately or automatically be rejected, as soon as the provision is triggered.

The court said that giving the opportunity to the public prosecutor to oppose bail does not mean rejection of bail on opposition simpliciter, adding that the public prosecutor cannot simply say that bail must not be granted without giving any reasons for the opposition.

“A reasoned opposition by the public prosecutor - not by the investigating agency - is a sine-qua-non for the court being satisfied in relation to the additional twin conditions stipulated under section 212(6) of the 2013 Act. Needless to add that the public prosecutor is expected to be fair and reasonable, being first and foremost an officer of the court, who is not expected to act as a mouthpiece of the investigating agency,” the court said.

It added that the necessity for a reasoned opposition is also inherent under Article 21 of the Constitution of India and that the sanctity of personal liberty “cannot be waylaid” on mere “unreasoned ipse-dixit” of the public prosecutor.

Furthermore, Justice Bhambhani said that to ascertain whether the prosecution has been able to prima-facie make out a case against an accused and for the additional twin- conditions to apply, there must be a specific allegation against the accused which must find place in the complaint or FIR.

The court also said that there must be material in support of such allegation and the combined reading of the material in support of the allegation must point towards the guilt of the accused.

“It would be necessary to note that the bulky nature of material annexed to the complaint is not a sufficient criteria, there must be something, as regards each specific allegation against the accused in the complaint, which point towards the guilt of the accused of the offence which attracts the additional twin-conditions. After all, bail, not jail is the rule,” the court said.

The court made the observations while granting bail to Ashish Mittal, former CFO of Educomp Group, in a case registered by Serious Fraud Investigation Office for the offences under sections 420 and 120B of the Indian Penal Code 1860 and sections 211, 628, 227, 233, 129, 447 and 448 of the Companies Act, 2013.

It was alleged that Mittal indulged in commission of fraud in the affairs of the “Companies Under Investigation” by using paper companies and siphoning-off funds in the accounts of the close associates of Shantanu Prakash, Managing Director of M/s. Educomp Solutions Ltd.

Granting bail to Mittal, Justice Bhambhani said that there are reasonable grounds for believing that Mittal was not guilty of the offence charged under the Companies Act.

“Furthermore, considering that the investigation is complete and the prosecution complaint has been filed before the learned Special Judge, this court is also satisfied that the petitioner is not likely to commit any offence while on bail,” the court said.

It added that Mittal shall also not, directly or indirectly, contact or visit or have any transaction with any of the officials or employees of the banks or companies concerned with the complaint.

“The Investigating Officer is further directed to issue a request to the Bureau of Immigration, Ministry of Home Affairs of the Government of India or other appropriate authority to forthwith open 'Look-out-Circular' in the petitioner's name, to prevent the petitioner from leaving the country, without the permission of the learned Special Judge,” the court said.

Title: ASHISH MITTAL v. SERIOUS FRAUD INVESTIGATION OFFICE

Citation: 2023 LiveLaw (Del) 365

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