PREM CHAND GRAG v. CENTRAL BUREAU OF INVESTIGATION

Heard the learned Counsel for the petitioner and the learned Counsel for the respondent.

2. The petitioner is said to be the ex-Managing Director of M/s Shri Lal Mahal Limited, a company incorporated under the Companies Act, 1956, which was arraigned as Accused No.30 in Special CC No.105/2014 pending on the file of the XLVI Additional City Civil and Sessions Judge, and Special Judge for CBI Cases, Bangalore. The petitioner was shown to be the representative of the accused - company. He was granted anticipatory bail and accused No.30 filed an application under Section 305 of the Code of Criminal Procedure, 1973 before the trial court seeking substitution of the petitioner as its representative and seeking that the appointment of Shri Khaja Ali as its representative to represent it for purposes of inquiry and trial in the place of the ex-Managing Director, Mr.Prem Chand Garg, be taken on record. A board resolution in this regard was also placed along with the application. On the basis of the said application, the bail application of Khaja Ali was filed and it was allowed and he was permitted to execute necessary bail bond in the stead of the ex-Managing Director Prem Chand Garg and on all consequent dates of hearing, it is Khaja Ali, who represented Accused No.30 and even filed an application for discharge which was opposed by the respondents. The court had issued summons to the petitioner, Prem Chand Garg on 16.3.2017 and he was required to appear on 30.3.2017. While the Court observed that it had not dispensed with the appearance of Prem Chand Garg as there was no formal order passed under Section 305 CrPC and has found fault with the previous Presiding Officer, who had accepted the surety of Accused no.30 and taken the bond of Khaja Ali, which was not sustainable in law and therefore has directed issuance of summons to Prem Chand Garg who is shown as accused no.30. It is this which is sought to be questioned.

3. The circumstance that the very court has found fault with its own order, in the sense that the earlier order permitting the bail application to be submitted by Khaja Ali, as a representative of Accused no.30 pursuant to the application under Section 305 CrPC, would indicate that the application was entertained and possibly allowed. For otherwise, the subsequent events, whereby Khaja Ali has been permitted to represent the company on more than one occasion before the court would be inexplicable. Therefore, the present Presiding Officer having taken exception to Khaja Ali having been permitted to come on record as the representative of the company in terms of section 305 of the crpc, without any formal order being passed, would have required the present Presiding Officer to pass an order to supply the lacuna, if at all and it did not warrant the court taking exception to circumstance that there was no formal order which ought to have been passed as a matter of form by the erstwhile Presiding Officer.

4. Therefore, this infirmity by itself did not warrant the impugned order and hence, the petition is allowed. If there is no formal order under Section 305 CrPC, it is only a matter of form which the present Presiding Officer himself could supply, as there is no reason why such application should be rejected.

5. The statement of objection filed by the respondents to insist that in the absence of a formal order, the very application is deemed to have been rejected may not be the correct possession. It was only formal application which was required to be allowed and has been allowed, though no formal order has been passed. There is no such mandatory requirement under Section 305 CrPC of passing such formal order. Hence, the exception taken by the court below is not sustainable. The application under Section 305 CrPC is deemed to have been allowed and it could also be placed on record by the court below to that effect. Sd/- JUDGE