HDFC BANK LTD.versusJ.J. MANNAN @ J.M. JOHN PAUL & ANR.

                   (2009] 16 (ADDL.) S.C.R. 590


A                        HDFC BANK LTD.
                                                                      ~   .
                                 v.
            J.J. MANNAN @ J.M. JOHN PAUL & ANR.
                (Criminal Appeal No. 2415 of 2009)
                       DECEMBER 16, 2009
B
         [ALTAMAS KABIR AND DEEPAK VERMA, JJ.]

        Code of Criminal Procedure, 1973:
                                                                     ,.. .

c        s. 438 - Anticipatory bail - Scope of - HELD: High Court,
    while granting anticipatory bail to accused, worded its order
    in such a way that it could be, and wa~ interpreted by all
    concerned to mean that accused was not required to even
    appear and surrender before court during entire investigation
    stage and trial - Such kind of order is not contemplated uls
D
    438 - No blanket order could be passed uls 438 to prevent        A •.

    the accused from being arrested at all in connection with the
    case - Order of High Court modified to the extent that
    accused shall surrender before trial court forth with and pray
    for regular bail.
E
        On a complaint made by the appellant-Bank that it
    had been cheated of Rs.2,04,40,000/- by respondent no.
    1 and others, an FIR was drawn up accused on 12.6.2006            )
    against the persons named in the complaint, for offences
F   punishable u/ss. 419, 420, 468, 473 read with s.120-B IPC.
    Respondent no. 1 applied for and was granted
    anticipatory bail u/s 438 CrPC by the High Court by its
    order dated 3.7.2006.

        In the instant appeal filed by the Bank, it was
G
    contended for the appellant that the High Court
    misapplied the provisions of s.438 CrPC and could not            '(
                                                                          ...
    have granted a blanket order of anticipatory bail upto the
    end of the trial. It was submitted that respondent no. 1
H                               590
                    HDFC BANK LTD. v. J.J. MANNAN @ J.M. JOHN           591
                                  PAUL & ANR.
         - J      never appeared in court even once, at any stage of the       A
                  case, and did not even surrender and obtain regular bail.

                       Partly allowing the appeal, the Court

                       HELD: 1.1. Section 438 Cr.P.C. contemplates arrest
                  at the stage of investigation and provides a mechanism       B
                  for an accused to be released on ba'i'I should he be
                  arrested during the period of investigation. Once the
            ""    investigation makes out a case against him and he is
                  included as an accused in the charge-sheet, the accused
                  has to surrender to the custody of the court and pray for    c
                  regular bail. On the strength of an order granting
                  anticipafdry bail, an accused against whom charge has
                  been framed, cannot avoid appearing before the trial
                  court. [Para 15] [598-A-C]
                                                                               D
'       -· ,/..        1.2. In the instant case, the role of respondent No.1
                  in the entire episode did not entitle him to the relief of
                  anticipatory bail, much less a blanket order of bail. The
                  High Court worded its order in such a way that it could
                  be interpreted to mean, as has been done by all
                  concerned, that respondent No.1 was not required to          E
                  even appear and surrender before the court during the
                  entire investigation stage and the trial. Taking advantage
            \     of the same, respondent No.1 has successfully avoided
    '
                  the court from the very initial stage of investigation and
                  even the trial. Such kind of an order is not contemplated    F
                  u/s 438 Cr.P.C. as has been repeatedly explained by this
                  Court. [Para 14] [596·G-H; 597-A-C]

                      Adri Dharan Das vs. State of West Bengal 2005 (2)
                   SCR 188  = (2005) 4 SCC 303; and Salauddin Abdulsamad       G
                  Shaikh vs. State of Maharashtra 1995 ( 6 ) SMi>pl. SCR
             y
                     =
                  556 (1996) 1 sec 667-- relied on.

                      Gurbaksh Singh Sibbia vs. State of Punjab 1980 (3)
                                                                               H
    592    SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R.


A    SCR 383 = (1980) 2 SCC 565; and Savitri Agarwal & Ors.
    vs. State of Maharashtra & Anr. 2009 (10) SCR 978   JT    =
    2009 (9) SC 460 = (2009) 8 SCC 325, referred to.

       1.3. The order of the High Court dated 3rd July, 2006,
  is modified to the extent that respondent No.1 shall
8
  surrender before the trial court forthwith and pray for
  regular bail. The trial court shall dispose of the application
  on merits, in accordance with law, before proceeding                 ;.    .
  further with the trial. [Para 16) [598-D-E]

c                         Case Law Reference:
          2005 (2) SCR 188           relied on            para 11
          1995 (6) Suppl. SCR 556 relied on               para 11
          1980 (3) SCR 383           referred to          para 12
D
          2009 (10) SCR 978          referred to          para 13
        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 2415 of 2009.
E       From the Judgment & Order dated 3.7.2006 of the High
    Court of Judicature at Madras in Criminal Original Petition No.
    15217 of 2006 and Crl. M.P. No. 3784 of 2006.
                                                                        ,l
          Manik Karanjawala for the Appellant.
F
        Rajiv Dutta, K.P. Narajanan, Anukul Raj, K.K. Mani, S.
    Thananjayan for the Respondent.

          The Judgment of the Court was delivered by

G         ALTAMAS KABIR, J. 1. Leave granted.

         2. This appeal has been filed by the H.D.F.C. Bank Ltd.
    (hereinafter referred to as "the Bank") against the judgment and
    order dated 3rd July, 2006, passed by the Madras High Court
    in Crl.M.P.No.3784 of 2006 and Crl.O.P.No.15217 of 2006,
H
        HDFC BANK LTO. v. J.J. MANNAN @ J.M. JOHN                 593
             PAUL & ANR. [ALTAMAS KABIR, J.]
, I   allowing the application filed by the Respondent No.1 under        A
      Section 438 of the Code of Criminal Procedure (Cr.P.C.) for
      grant of anticipatory bail to him.

            3. According to the Bank, the Respondent No.1 in his
       capacity as the Managing Director of the Mannan Construction      B
       Corporation Private Limited, a company engaged in the
       execution of Highway Contracts and contracts of the Public
      Works Department (hereinafter referred to as "the Company"),
       along with one Mis. Immanuel Projects Private Ltd., applied for
      a loan of Rs.2,03,40,0001- (Rupees Two Crores, three lakhs
      and forty thousand) only, for purchase of 6 Krishna Electronic     C
      Sensor Paver Finishers from one Mis. Krishna Engineering
      Works in Ahmedabad. The said loan was duly sanctioned and
      after signing of necessary Agreements and other documents,
      six cheques for the loan amount of Rs.2,03,40,0001-, drawn in
      the name of Mis. Krishna Engineering Works, were handed over       D
.J
      to the Respondent No.1 on 9th March, 2006. Subsequently, by
      a letter dated 24th May, 2006, the Bank informed Mis. Krishna
      Engineering Works in Ahmedabad that a sum of
      Rs.2,03,40,0001- had been disbursed to them on account of the
      Respondent No.1 and requested them to confirm receipt of the       E
      same. Mis. Krishna Engineering Works wrote back to the Bank
      stating that it had not received any payment on account of Mr.
      J.M. John Paul.
  \
           4. The Bank thereupon caused enquiries to be made and
                                                                         F
      came to learn that no machineries had, in fact, been purchased
      by the Respondent No.1, and that the Respondent No.1 had
      colluded with Mis. Immanuel Projects Private Limited and their
      Directors and one Mr. R.I. Jambert Mathuram with the intention
      of cheating the Bank and in the process had committed
      offences punishable under Sections 420, 467, 468, 471 and          G
      120-B Indian Penal Code.

           5. The Bank filed a complaint with the Commissioner of
      Police, Egmore, Chennai-600008 on 27th May, 2006, setting
      out the facts relating to sanction of the loan and the handing     H
    594 SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R.

                                                                          \       .
A   over of the six Banker's cheques in the name of M/s. Krishna
    Engineering Works. The complaint also contained the manner
    in which the Respondent No.1 had opened a fictitious account
    with l.C.l.C.I. Bank, Tuticorin Branch, in the name of M/s.
    Krishna Engineering Works and deposited the cheques meant
B   for supply of road construction equipment by Krishna
    Engineering Works of Ahmedabad. Thereafter, the said
    amount was encashed and transferred to M/s. Matrix
    Enterprises having its office at No.41, C.G.E. Colony, 5th            >
    Street, Tuticorin-628 003, which was holding an account in the
    Tuticorin Branch of l.C.l.C.1. Bank. The said amounts were again
c   transferred to the account of M/s. Delta Enterprises, also having
    its office at No.41, C.G.E. Colony, 5th Street, Tuticorin, with the
    Tuticorin Branch of the LC.LC.I. Bank.

        6. After the aforesaid transactions, the moneys were finally
D credited to the account of the Respondent No.1 in the same              \       .
    Branch of the l.C.l.C.I. Bank. It was also found on enquiry that
    the addresses of all the above-mentioned companies were that
    of the residence of the Respondent No.1, Mr. J.M. John Paul.

E       7. F.l.R. No.157 of 2006 dated 12th June, 2006, was
    drawn up on the basis of the aforesaid complaint against the
    Respondent No.1 and others by the Central Crime Branch,
    Chennai, under Sections 419, 420, 468, 473 read with Section
                                                                              (
    120B Indian Penal Code.
F        8. The Respondent No.1 thereupon filed an application in
    the Madras High Court under Section 438 Cr.P.C. for grant of
    Anticipatory Bail and the learned Single Judge of the said High
    Court, by his order dated 3rd July, 2006, allowed the same upon
    holding that since the investigating agency had already seized
G   all relevant and vital documents and had recorded the
    statements of all the important witnesses, the custodial              -r
    interrogation of the Respondent No.1 was not required.

        9. The present appeal has been filed by the Bank for
H   cancellation of the Anticipatory Bail granted to the Respondent
               HDFC BANK LTD. v. J.J. MANNAN @ J.M. JOHN                     595
      , I           PAUL & ANR. [ALTAMAS KABIR, J.]

            No.1.                                                                    A

                  10. On behalf of the Union of India it was contended that
            in the facts of the case, the High Court had erred in allowing
            the Respondent No.1's application under Section 438 Cr.P.C.
            since he had allegedly master-minded the fraud and having
                                                                                     B
            regard to the gravity of the offence alleged, the Anticipatory Bail
        .   granted to him was liable to be cancelled. Mr. Lalit submitted
            that the Respondent No.1 had misappropriated what was meant
            to be paid to the supplier of the road construction equipment,
            in a planned manner and the whereabouts of the moneys was
            yet to be ascertained.                                                   c
                  11. Mr. Lalit submitted that the provisions of Section 438
            Cr.P.C. had been misapplied by the High Court in this case,
            since there was sufficient material on record to prima facie
  -~        indicate that the Respondent was a direct player in the                  D
            fraudulent episode, and, in any event, the High Court could not
            have granted a blanket order of Anticipatory-Bail upto the end
            of the trial. Mr. Lal it submitted that in view o{ the impugned order,
            the Respondent No.1 had never appeared 1n Court even once,
            at any stage of the case, and had not even surrendered and               E
            obtained regular bail. Mr. Lalit referred to the decision of this
            Court in Adri Dharan Das vs. State of West Bengal [(2005) 4
        \   sec 303], wherein it was categorically indicated that
mir         Anticipatory Bail had to be given for a limited duration so as
            to enable the accused to move for regular bail under Section             F
            437 Cr.P.C. Reference was also made to the decision of this
            Court in Sa/auddin Abdulsamad Shaikh vs. State of
            Maharashtra [(1996) 1 sec 667] where the same essentials
            have been reiterated.

                 12. Appearing for the Respondent No.1, Mr. Rajiv Dutta,             G
        y
            learned Senior Advocate, submitted that except for wild
            allegations made against the Respondent No.1, nothing
            incriminating had been found against him. Mr. Dutta urged that
            the Respondent No.1 had been granted Anticip<1lory Bail as far
            back as on 3rd July, 2006, and he had never misused the                  H
    596   SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R.
                                                                          \       -
A   privilege and had co-operated with the investigating agencies
    all through. Furthermore, the trial had already commenced and
    several witnesses had been examined and there could,
    therefore, be no justification for cancelling the Anticipatory Bail
    granted to him by the High Court more than three years ago.
B   Referring to the decision of the Constitution Bench in the case
    of Gurbaksh Singh Sibbia vs. State of Punjab ((1980) 2 SCC
    565), wherein the application of Section 438 Cr.P.C. had been         >
    considered in detail, Mr. Dutta submitted that the said provision
    had been interpreted to be a beneficent provision relating to
c   personal liberty guaranteed     \
                                         under Section 21 of the
    Constitution. Mr. Dutta submitted that the Constitution Bench had
    observed that since denial of bail amounts to deprivation of
    personal liberty, the court should lean against the imposition of
    unnecessary restrictions on the scope of Section 438 Cr.P.C.
D       13. Reference was also made to the decision of this Court
                                                                          .       ~



  in the case of Savitri Agarwal & Ors. vs. State of Maharashtra
                                   =
  & Anr. [JT 2009 (9) SC 460 (2009) 8 SCC 325), where the
  various decisions in this regard, with special emphasis on
  Sibbia's case (supra) as also Adri Dharan Das's case (supra),
E were referred to. Their Lordships took note of the fact that the
  provisions of Section 438, as amended, had not yet been
  notified and that as a result the old provision continued to be in
                                                                              I
  force. Hence, the earlier decisions would continue to be relevant                   ..
  to the facts of this case. Mr. Dutta submitted that having regard
F to the views expressed by this Court in no uncertain terms,
  prayer for Anticipatory Bail should not be refused and, in any
  event, in this case Anticipatory Bail had already been granted
  more than three years ago and hence the submissions now
  being made as to when Anticipatory Bail should be granted
G have become irrelevant.                                                 'f
         14. Having carefully considered the submissions made on
    behalf of the respective parties and the decisions referred to
    in support of their respective cases, we are of the view that the
    role of the Respondent No.1 in the entire episode did not entitle
H
               HDFC BANK LTD. v. J.J. MANNAN@ J.M. JOHN                  597
     • t            PAUL & ANR. [ALTAMAS KABIR, J.]

             him to the relief of Anticipatory Bail, much less a blanket order   A
             of bail. However, t_hat is now a closed chapter. But what is of
             relevance is whether the High Court should have worded its
             order in such a way that it could be interpreted to mean, as has
             been done by all concerned, that the Respondent No.1 was not
             required to even appear and surrender before the Court during       B
-            the entire investigation stage and the trial. Taking advantage
    . ~'     of the same, the Respondent No.1 has successfully avoided
            the Court from the very initial stage of investigation and even
            the trial. Such kind of an order is not contemplated under
            Section 438 Cr.P.C. as has been repeatedly explained by this         c
            Court. The said position has been clearly enunciated in Adri
            Dharan Das's case (supra). Furthermore, it has also been
            consistently indicated that no blanket order could be passed
            under Section 438 Cr.P.C. to prevent the accused from being
    -- Ji
            arrested at all in connection with the case. To avoid such an
                                                                                 D
            eventuality it was observed in Adri Dharan Das's case (supra)
            that Anticipatory Bail is given for a limited duration to enable
            the accused to surrender and to obtain regular bail. The same
            view was reiterated in Salauddin's case (supra) wherein it was,
            inter alia, observed that Anticipatory Bail should be of limited
            duration only and primarily on the expiry of that duration or        E
            extended duration, the Court granting Anticipatory Bail should
            leave it to the regular court to deal with the matter on an
            appreciation of evidence placed before it after the investigation
            has made progress or the charge-sheet is submitted.
                                                                                 F
                   15. The object of Section 438 Cr.P.C. has been
            repeatedly explained by this Court and the High Courts to mean
            that a person should not be harassed or humiliated in order to
            satisfy the grudge or personal vendetta of the complainant. But
            at the same time the provisions of Section 438 Cr.P.C. cannot        G
>      l    also be invoked to exempt the accused from surrendering to
            the Court after the investigation is complete and if charge-sheet
            is filed against him. Such an interpretation would amount to
            violence to the provisions of Section 438 Cr.P .C., since even
            though a charge-sheet may be filed against an accused and
                                                                                 H
    598     SUPREME COURT REPORTS [2009) 16 (ADDL.) S.C.R.


A charge is framed against him, he may still not appear before
  the Court at all even during the trial. Section 438 Cr.P.C.
  contemplates arrest at the stage of investigation and provides
  a mechanism for an accused to be released on bail should he
  be arrested during the period of investigation. Once the
B investigation makes out a case against him and he is included
  as an accused in the charge-sheet, the accused has to
  surrender to the custody of the Court and pray for regular bail.     f-
  On the strength of an order granting Anticipatory Bail, an
  accused against whom charge has been framed, cannot avoid
C appearing before the trial court. If what has been submitted on
  behalf of the appellant that the Respondent No.1 has never
  appeared before the trial court is to be accepted, it will lead to
  the absurd situation that charge was framed against the
  accused in his absence, which would defeat the very purpose
  of Sub-Section (2) of Section 240 Cr.P.C.                            " •.
0
       16. Having regard to the above, the order of the High Court
  dated 3rd July, 2006, is modified to the extent that the
  Respondent No.1 shall surrender before the Trial Court forthwith
  and pray for regular bail and the Trial Court shall dispose of
E the same on merits, in accordance with law, before proceeding
  further with the trial.

           17. The appeal is allowed to the above extent.

    R.P.                                    Appeal Partly allowed.
F