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SC sets aside ‘impermissible’ Patna HC order to arrest Subrata Roy in bail case
The Bihar government represented by advocate Manish Kumar sought to justify what the HC did on the ground of “larger public interest” as it involved recovery of money for poor investors.
The Supreme Court on Thursday set aside a string of orders passed by the Patna high court directing the arrest of businessman Subrata Roy Sahara while deciding an anticipatory bail petition totally unrelated to him and going to the extent of seeking a refund plan on matured deposits of his company, Sahara Group, on an application moved in the same proceedings by aggrieved investors.
Terming such a proceeding initiated by the high court to be “impermissible”, a bench of justices AM Khanwilkar and JB Pardiwala said, “In such proceedings, we have no manner of doubt that enquiry must be limited to facts relevant to the concerned applicant who has come before the Court.” In the present case, one Pramod Kumar Saini had approached the Patna high court for anticipatory bail in a case of cheating having no connection with the Sahara group.
The bench said, “In the present case, we noticed that the high court kept the application for grant of anticipatory bail pending and issued notice to third parties (Roy and Sahara group) to appear before the Court. That in our opinion is impermissible and cannot be countenanced.”
Asking the high court to be “circumspect” while exercising its jurisdiction, the top court held, “No attempt should be made to enquire against a third party, much less beyond the scope of complaint or FIR in question.” Sahara had approached the top court challenging orders passed on February 11, April 27 adding him as a party to the proceeding and the May 13 order by which the HC ordered him to be arrested and produced in Court for his failure to turn up in Court on the past two occasions citing health grounds.
“The high court has clearly exceeded its jurisdiction in that regard. Accordingly, all observations or notings made by the high court in respect of matters unrelated to the case of the applicant before the high court must stand effaced from record,” the bench noted, as it set aside the judgment and orders of the high court without expressing any opinion on the observations made against Roy.
Senior advocate Kapil Sibal who appeared for Roy had obtained a stay of the HC proceedings on May 13 apprehending his arrest. Sibal said, “This is music to our ears” as the bench accepted his arguments and held, “It is not open for the high court to exercise its powers under Section 438 of the Code of Criminal Procedure (CrPC) dealing with anticipatory bail to add third parties to proceedings who are neither necessary or proper parties to the complaint.” Sibal had argued that Roy was not even an accused and the anticipatory bail matter did not relate to Sahara group.
The Bihar government represented by advocate Manish Kumar sought to justify what the HC did on the ground of “larger public interest” as it involved recovery of money for poor investors. The bench said that such a course of action was open to the high court but not in a Section 438 CrPC proceeding dealing with anticipatory bail.
The bench told the state, “If this argument is to be accepted, such a plea is fraught with danger of transcending beyond the scope of application and matters relevant before the Court.” However, at Kumar’s request, the bench clarified that its order will not prevent the state from resorting to such remedies under law to pursue complaints of investors.
