New Delhi: The Supreme Court Wednesday said that the Patna High Court, which had directed for Sahara Group chief Subrata Roy's presence before it, had gone beyond its jurisdiction in passing such order while hearing the anticipatory bail plea of others.
The apex court observed that Roy was not an accused in the case which was before the high court. "This is a wrong trend which is evolving. In an application for bail, you start an inquiry into matters which are irrelevant for consideration of bail. How can it be relevant for consideration of bail? Either you reject bail or grant bail, a bench of Justices A M Khanwilkar and J B Pardiwala said. The top court had earlier stayed the direction of the high court which had asked the Director-General of Police, Bihar, to produce Roy before it in connection with a case in which some companies of the Group were allegedly not returning money to the investors.
It had also stayed the separate order passed by the high court which had on February 11 directed to add Sahara Credit Cooperative Societies Limited and Roy as opposite parties to a bail petition pending before it and later, directed him to personally appear before it. On April 27, the high court directed Roy to personally appear before it noting that Sahara Group and other companies, which have been taking deposits till about one month back, are directed to come up with a plan for the return of investment of the investors. During the hearing on Wednesday, the bench observed that the high court could have passed such an order in other proceedings and not while exercising jurisdiction under section 438 of the Code of Criminal Procedure (CrPC).
Section 438 of the CrPC deals with the direction for grant of bail to a person apprehending arrest. "In my limited experience of 22 years, I have learnt one thing that this is going beyond your jurisdiction," Justice Khanwilkar observed. "We are not here observing that the high court cannot do it at all. It can do it but do it in a proper format and proper jurisdiction. Not in 438," the bench said. The counsel appearing for Bihar said the high court has not made Roy an accused and has only asked him to submit a plan as to how he is going to return the money to investors. He said the high court has proceeded far ahead in the matter. "This is going far beyond your jurisdiction," the bench said, adding, "All that we are saying is, it cannot be done under 438."
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The bench observed that applicants before the high court had prayed for anticipatory bail and the court should have looked into the case whether any prima facie case is made out for grant of bail or not. "If such order was to be passed by the sessions court, the high court would have come very heavily on that sessions judge and even advised him to go to the judicial academy," it said. The top court said there are ways of resolving the problem but it has to be done in a manner that is permissible in law. The bench was informed that the Reserve Bank of India (RBI) has also filed a petition against the high court order in the matter. It posted the matter for Thursday. The apex court had on May 13 issued notice on the plea filed by the Sahara chief against the high court orders.
During the hearing on May 13, senior advocate Kapil Sibal, appearing for the petitioner, had apprised the apex court that earlier on that day, the high court had passed an order directing the Bihar DGP to produce Roy before the court on May 16 at 10.30 AM. Sibal had earlier told the apex court that the high court had passed these orders while hearing an anticipatory bail plea which has nothing to do with the petitioner. In its April 27 order, the high court noted that while considering the anticipatory bail applications, the court has come across cases of cheating committed by Non-Banking Financial Companies (NBFCs), and considering the same, various orders were passed in these cases earlier.
The high court noted that it was informed that the Bihar Protection of Interest of Depositors (in Financial Establishments) Act, 2002 was enacted to control such activities but the public at large has been cheated by NBFCs without any control and the government functionaries under the Act have not been able to give any relief to them. It had also noted that a large number of complaints before the authorities under the 2002 Act for non-payment of maturity amount by different entities of Sahara Group registered as NBFCs, multi-purpose cooperative society, etc. have been received by the authorities but the Group has "somehow evaded payment of maturity amount of the investors". Prior to that, on February 11, the high court had noted in its order that some interlocutory applications have been filed by some intervenors that their money is lying with Sahara Credit Cooperative Societies Limited and other companies of the Sahara Group and they have not been returning the amount to the investors. (PTI)
