RADHA KAPOOR KHANNA Vs. CENTRAL BUREAU OF INVESTIGATION

JUDGEMENT

(1.) The four applications are instituted by the Applicants, seeking their release on bail on being charge-sheeted. Barring the Applicant-Roshini Kapoor, all the three other Applicants are charge-sheeted in the second charge-sheet vide 13/07/2021.

(2.) Drawing an analogy from the authoritative pronouncement in case of Aman Preet Singh (supra) and an earlier decision of the Hon 'ble Apex Court in Case of Siddharth V. State of U.P. Cri.Appeal No.832 of 2021 decided on 16/08/2021 , it is argued that as far as the present Applicants are concerned, during investigation their custody was not sought by the investigating agency and when the cognizance of the offence was taken, on 20/08/2021, the Court deemed it ft to issue summons and to obey the dictate, the Applicants put their appearance before the Special Judge and moved distinct applications seeking release on bail, in light of the well discerned principles in case of Aman Preet Singh (supra). It is argued that the factum of they not having been arrested during investigation or not being produced in custody itself entitle them to be released on bail, without probing into the gravity of accusations. It is urged that other relevant considerations for being released on bail; fight risk and likelihood of tampering with the prosecution case neither existed during the course of investigation nor have been expressed before the Trial Court. In these peculiar facts, the impugned order rejecting the bail applications, is subjected to heavy criticism as not adhering to the procedure established by law. It is also argued by the learned senior counsel that sometimes wrong practices, which are mechanically followed, may result into an inconvenient situation, but ultimately since the procedure can only be considered as handmaid of justice, substantive justice itself cannot be avoided. A decision of Allahabad High Court in case of Vishwa Nathi Jiloka and Ors. V. Ist Munsif Lower Criminal Court, Baharaich and Ors. 1989 SCC Online All 228 and decision of the Kerala High Court in case of Sreekumar V. State of Kerala 2008 SCC OnLine Ker 318 , is pressed into service. Learned senior counsel would submit that such an approach would result in travesty of justice, which at any cost, cannot be tolerated. The hype created in case of economic offences in which the present case falls into is delusion is another submission and to that effect, decision of the Hon 'ble Apex Court in case of Sushila Aggarwal and Ors. V. State (NCT of Delhi) and Anr. (2020) 5 SCC 1 is cited. The pivotal point on which the release of the Applicants is sought to be propagated is the principle of 'Bail is the rule and jail is an exception '.

(3.) I have heard Mr.Venegaonkar, learned counsel representing the CBI. He admit that the CBI did not seek custody of the Applicants during investigation, but he would urge that when the Applicants moved an application for being released on bail, on appearance before the Special Judge, by referring to the material compiled in the charge-sheet, the CBI opposed the application for release on bail, by inviting attention of the Court to the gravity of accusations and also expressing the chance of tampering with the case of the prosecution. He placed reliance on the decision of the Single Judge of Delhi High Court in case of Sharad Kumar V. CBI 2011(125) DRJ 200 and his submission is to the effect that once the Applicants had surrendered to the jurisdiction of the Special Court, the learned Judge was duty bound to consider the application for release on bail on the parameters recognized by the Code and in any case, merely because they were not arrested during investigation, will not solely make them entitled for being released on bail. Learned counsel would submit that the Applicants by arguing their applications on merit and having invited the order, now cannot make a grievance.