1. This petition has been filed by the prosecution seeking to set aside the order passed by the learned Additional Chief Metropolitan Magistrate, Egmore granting bail to the first accused/respondent for the following reasons:

(i)Charges against accused are serious and nature of offence is grave.

(ii)Accused/respondent was absconding after FIR was registered and not available pending investigation.

(iii)Previous conduct of accused being unfair.

(iv)Possibility of fleeing away from India.

2. The learned Additional Chief Metropolitan Magistrate granted bail for the reasons:

(i)Accused voluntarily came to New Delhi and had no intention of absconding.

(ii)He is permanent resident of Chennai and there is no necessity for him to abscond.

(iii)Passport of accused already been impounded by police.

(iv)Continuous incarceration of the accused amounts to pre-trial punishment and he is in custody for the past 201/2 months awaiting for commencement of trial.

3. The respondent/accused try to sustain the order for bail for reasons:

(i)The accused/respondent was not absconding and he is permanent resident of Chennai.

(ii)Under incarceration for nearly 21 months and trial is not commenced and as there are number of witness and documents, it would take very long time for completion of trial as even copies are not furnished.

(iii)Till date delay was not by respondent/accused.

(iv) The entire case of prosecution is based on documents and no question of tampering by accused if released on bail.

(v)The respondent has bona fide intention to reimburse any loss sustained by persons and deposited Rs.2.5 Crores with the SEBI Authorities.

4. V.T.Gopalan, learned Additional Solicitor General appearing for the petitioner submitted that the learned Magistrate without taking into consideration that charges against the respondent/accused are serious, erroneously holding that accused was not absconding granted bail. He further submitted that the accused committed criminal misappropriation of Rs.594 Crores by fraudulently selling 1.30 Crores unlisted and unallotted shares of M/s. DSQ Software Ltd., through stock exchanges. Even bail granted to this respondent by the learned Magistrate under Section 167(2) Cr.P.C., was set aside by this High Court and it was confirmed by the Honourable Supreme Court dismissing Special Leave Petition filed by the accused. The First Information Report is dated 31.7.2003 and immediately after registering FIR, the accused left to United States of America and after absconding for three years returned to India stealthily without any entry in the Passport. In the meantime during the course of investigation notices were issued, but he evaded and a non-bailable warrant was obtained on 14.2.2005 and Red Corner Notice was issued through Interpol on 16.3.2005. Steps were taken to extradite him from United States of America to India. On 24.10.2005 final report was filed showing the respondent as absconding accused. While the respondent was in United States of America apprehending arrest and prosecution in United States of America came to India since the respondent in the name of Nick Mittal conspired and indulged in wire fraud and a District Court, New Jersy of U.S.A., indicted the respondent/accused and in pursuance of it an arrest warrant was signed by U.S. Magistrate. He further added that the accused/respondent returned to India without any entry in Passport and there is no record anywhere for his arrival to India. Apart from this case, the accused is involved in other cases involving economic offences. He further submitted that the delay in commencement of trial is not due to prosecution, but as all the accused were not present copies of documents could not be furnished (sic). The learned Additional Solicitor General stated that long incarceration alone can be a ground for granting bail and other aspects should be taken into consideration before granting bail and if the respondent is allowed to go on bail, there is every possibility of the accused absconding and already the accused was arrested after a long struggle. He relied on several decisions of the Honourable Supreme Court.

5. The learned Senior Counsel I.Subramaniam appearing for the respondent/first accused submitted that accused was not absconding. In the usual course of business, he left to United States of America in December 2003. No notice was served and he had no knowledge about the case. With regard to Red Corner notice, his counsel in United States were constantly in touch with Interpol Officials. He returned to India in order to comply with conditional order dated 8.12.2005 passed by the Securities Appellate Tribunal. Even on 3.2.2005, 2.5 Crores was paid. On his return, he was arrested on 12.2.2006. The learned Senior Counsel also submitted that absence of entry in Passport should not lead to a conclusion that he did not use passport for his return. The respondent has no other passport except one which is handed over to C.B.I. For an exit from U.S.A., no entry is made in passport and no visa is required for entering Nepal and accused travelled on road from Nepal to India. The learned Senior counsel further submitted that the respondent returned to India only on his own volition and he has not committed wire fraud and money laundering in U.S.A., and the indictment came to be filed against him only in September, 2006 which is long after his return to India. It was further added that accused is not responsible for delay in commencement of trial. Only statement of witnesses were filed and documents were not filed copies were not made ready. The learned Senior Counsel vehemently contended that a person should not be detained by way of punishment and question is whether he would be available for trial. An affidavit of respondents wife was filed stating that she is also willing to deposit her passport and her child is studying in Chennai and there is no possibility of her husband leaving them and absconding. The learned Senior Counsel also submitted that once bail is granted, it should not be ordinarily cancelled and there is no relevant factor in this case for cancellation.

6. The learned Senior Counsel also relied on the decisions of the Honourable Supreme Court reported inDolat Ram and Others v. State of Haryana (1995) 1 SCC 349 [LQ/SC/1994/1112] ; Bhagirath Sinh v. State of Gujarat (1984) 1 SCR 839 [LQ/SC/1983/335] ; Samarendra Nath Bhattacharjee v. State of W. B., and Another (2004) 11 SCC 165 [LQ/SC/2004/938] .

7. This Court considered the rival submissions made by both parties and perused the petition, counter and copies of other records filed by both parties.

8. To question whether bail or Jail; normally it is to be answered as bail, since it should not be as a punishment before conclusion of trial, but still bail is denied on various circumstances.

9. In the decision of the Honourable Supreme Court reported in State of Uttar Pradesh through CBI v. Amarnath Tripathi (2005) SCC (Crl.) 1960 it is observed in paragraph-18 as follows:

It is well settled that the matters to be considered in an application for bail are (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the charge; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with; and (viii) danger of course, of justice being thwarted by grant of bail

10. In this particular case, it is to be seen whether the learned Magistrate had followed the well settled principles of law in regard to grant or refusal of bail.

(i)Whether there is any prima facie or reasonable ground to believe that the accused had committed the offence.

(ii)Nature and gravity of charge

(iii)Severity of punishment in the event of conviction.

In the order passed by the learned Magistrate though it is mentioned that the prosecution argued about the grave nature of offence and huge financial loss caused to the public, this aspect has not been considered at all by the learned Magistrate. Now, this Court holds that a prima facie case is made out against the respondent with serious allegations of defrauding public wherein huge amount is involved.

Further though it is submitted by the learned Senior Counsel appearing for the respondent that during the earlier proceedings; the arguments were not advanced on merits of the case, it is observed by His Lordship Mr.Justice R.Regupathi, by order dated 22.12.2006 in Crl.R.C.No.1173 of 2006 in paragraph-31, that once a final report is filed, the grant of bail may have to be considered on merits of the case and in the instant case, the accused never taken any interest to canvass his bail on the merits of the case, though the prosecution is willing to submit the arguments on the merits of the case.

11. (iv) Danger of accused absconding or fleeing if released on bail.

It is observed in the order by the learned Magistrate that the accused voluntarily came to New Delhi even though he knew about the registration of the case against him. It shows that he has no intention of absconding from the clutches of the case. The learned Magistrate without looking into so many factors has concluded that the accused did not abscond. The fact remains that the respondent/accused was not available for interrogation after registration of First Information Report and only absconding charge sheet was filed. Further even after Non Bailable Warrant was issued and Red Corner notice was issued, the respondent did not appear. Even according to respondent, it is not his case that he was not aware pending of Non Bailable Warrant, but stated in the counter that his counsel in New Jersy was also communicating with them contending the validity of issuance of Red Corner notice. Even after coming to New Delhi the accused did not surrender, but he was only arrested. It is also the case of prosecution that accused left United States of America to avoid proceedings against him due to wire fraud and money laundering committed by him. Though it was submitted by the accused that after his arrival to India and his arrest only indictment was made against him, there was every possibility for the accused to know earlier about it and therefore decided to leave United States of America. Further there is no record to show on what date the accused came to India and other particulars about his travel based on documents not available. Anyhow, the fact remains that he was only arrested and not surrendered on his own. Therefore it is erroneous for the learned Magistrate to hold that the accused did not abscond. Therefore though the respondent claims that he is the resident of Chennai and will not abscond, his long absence in Chennai and his stay at U.S.A., in the name called as Nick Mittal and his arrest in New Delhi leads to show that there is a danger of absconding, if the accused released on bail.

12. (v) Character; behaviour, means, position and standing of the accused.

(vi)Likelihood of offence being repeated.

The learned Magistrate has totally ignored to take into consideration about the pendency of other cases against the petitioner in India and U.S.A. Especially though it was brought to the notice of the learned Magistrate through counter filed by the prosecution that the accused committed offences of wire fraud and money laundering amounting to US Dollars 19 million in U.S.A., and the grand jury of District Court New Jersy of U.S.A., has indicted the accused on various charges, this fact has been ignored by the learned Magistrate.

13. (vii)Reasonable apprehension of the witnesses being tampered with.

As the case mainly rests on documents, apprehension of tampering witness may not stand against the accused.

14. (viii)danger of justice being thwarted by grant of bail.

After the release of accused, if the proceedings is delayed, then there is danger of justice being thwarted.

15. In view of all the above considerations, the grant of bail by the learned Magistrate shows that the discretion was not exercised by him in a judicious manner.

16. The only consideration of the learned Magistrate for granting bail seems to be long incarceration of accused for the past 201/2 months and according to him it amounts to pre-trial conviction.

17. The Honourable Apex Court has held in the decision reported in Rajesh Ranjan @ Yadav Pappu Yadav v. CBI 2007 Crl.L.J 304 as follows;

Para: 10: In our opinion none of the aforesaid decisions can be said to have laid down any absolute and unconditional rule about when bail should be granted by the Court and when it should not. It all depends on the facts and circumstances of each case and it cannot be said there is any absolute rule that because a long period of imprisonment has expired bail must necessarily be granted.

Para: 16: We are of the opinion that while it is true that Article 21 is of great importance because it enshrines the fundamental right to individual liberty, but at the same time balance has to be struck between the right to individual liberty and the interest of society. No right can be absolute, and reasonable restrictions can be placed on them. While it is true that one of the consideration in deciding whether to grant bail to any accused or not is whether he has been in jail for a long time, the Court has also to take into consideration other facts and circumstances, such as the interest of the society.

18. The Honourable Supreme Court in Chenna Boyanna Krishna yadav v. State of Maharashtra and Another 2007 Crl.L.J 782 has held thus;

Para- 16: .It is true that when the gravity of the offence alleged is severe, mere period of incarceration or the fact that the trial is not likely to be concluded in the near future either by itself or conjointly may not entitle the accused to be enlarged on bail. Nevertheless, both these factors may also be taken into consideration while deciding the question of grant of bail.

Therefore long incarceration alone is not consideration for bail. Personal liberty and social justice are the two wheels which must run parallel.

19. Under the above said circumstances the order of the learned Additional Chief Metropolitan Magistrate passed in Crl.M.P.No.1943 of 2007 in C.C.No.19189 of 2005 dated 1.11.2007 is set aside.

20. The learned Additional Solicitor General submits that the prosecution is prepared to complete the trial within six months from the period of charges being framed.

21. The learned Magistrate is directed to furnish copies within a month from this day and to conduct the trial on day to day basis as much as possible after charges being framed. The learned Magistrate is also directed to complete the trial within six month after charges being framed. If the trial is not proceeded substantially and no possibility of completing the trial in the near future, then it is open to the respondent to approach this Court for bail which may be considered if the delay is not caused by the respondent herein or anyone of the co-accused.

This criminal original petition is allowed accordingly.