Read Time: 15 minutes

Synopsis

The Supreme Court on April 9, 2025 said that granting anticipatory bail is certainly not the rule. It held that individuals who deliberately evade the legal process—by avoiding court appearances, hiding to escape summons, and attempting to obstruct proceedings—are not entitled to such protection.

"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," a bench of Justices Bela M Trivedi and Prasanna B Varale said.

The court was dealing with a batch of petitions by the Serious Fraud Investigation Office, highlighting a brazen attempt made on the part of the respondents-accused to stall the criminal proceedings initiated against them, in respect of the serious economic offences allegedly committed by them. The accused did not respect the summons/warrants issued by the Special Court at Gurugram from time to time and thereby causing obstruction in the administration of justice.

The apex court emphasised that 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 and 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, the court said.

Referring to Srikant Upadhay’s case, the bench said that it has been held that when a 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. 

The court noted that in the case at hand, the high court had granted anticipatory bail to the accused, ignoring the facts that the special court had passed 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 CrPC, for requiring respondents to appear before it.

The complaint was filed against one Adarsh Credit Cooperative Society Limited (ACCSL) a Multi-State Credit Cooperative Society, founded by one Mukesh Modi, and was managed and controlled by him and his family, and his associates. 

The said society accepted the deposits from its members, who were mostly low to middle-income individuals. The ACCSL had 800+ branches, 20 lakhs members, 3.7 lakhs advisors and Rs 9253 crores of outstanding deposits as on May 31, 2018. The controllers of the Society i.e. Mukesh Modi, Rahul Modi and others, got incorporated around 125 companies (Adarsh Group of Companies). 

On the completion of the investigation, it was found that the funds to the tune of Rs 1700 crores were given by the ACCSL as illegal loans to its own controlled 70 Adarsh Group of Companies (CUIs). It was further alleged that the total amount of Rs 4120 crores was the outstanding balance as on March 31, 2018 against such illegal loans given by the ACCSL.

The special court in 2019 took cognizance of the offences and issued process against the accused persons. 

Considering SFIO's plea, the bench said, 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 cognizance has found him prima facie involved in serious economic offences or heinous offences, the court said.

The court said, 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, it emphasised.

In the present case, the bench said though the special court had taken cognizance of the alleged offences under the Companies Act including under Section 447 and other offences under the IPC, and even though the non-bailable warrants were issued from time to time against the respondents, and even though the proclamation proceedings were initiated against them, the high court had passed the impugned orders. 

"The said orders have been passed in utter disregard of the mandatory conditions contained in Section 212(6) of the Companies Act, and also ignoring the conduct of the respondent accused. Such orders being in the teeth of the legal position settled by this Court, as also in the teeth of the Section 212(6) of Companies Act, would fall into the category of perverse orders and therefore untenable at law," the court held.

In none of the impugned orders, the bench said, the high court had bothered to look into the proceedings conducted, and the detailed orders passed by the special court for securing the presence of the respondents–accused.

The court also emphasised 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 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, the bench said.

The bench set aside the high court's orders passed on March 29 and April 20, 2023, granting anticipatory bail to the respondent accused. It directed them to surrender before the special court within a week. The court, however, dismissed a special leave petition against the relief to Akshat Singh, Naveen Kumar, Mahesh Dutt Sharma.

Case Title: Serious Fraud Investigation Office Vs Aditya Sarda