The High Court of Bombay called for the record of a case the charge sheet for which was filed before a Special Court in Mumbai but had not been taken into cognisance after more than 2 years. The charge sheet was filed by the Serious Fraud Investigation Office (SFIO) in 2019.
The bench of Justice Revati Mohite Dere said, "Certain directions have to be given to the trial court."
Justice Dere was hearing a plea filed by former vice-chairman of the Infrastructure Leasing & Financial Services (IL&FS), Hari Sankaran, seeking forthwith release from prison on the ground that the Special Court in Mumbai had remanded him to custody without taking cognisance of the chargesheet. Sankaran was arrested on April 1, 2019.
Sankaran's plea prayed for setting aside all orders passed by the trial court so far & also sought release from prison after holding the detention illegal.
Justice Dere was appalled at the manner of delay in the case just. “A matter pending with no cognisance is a matter of concern for this court. The reasons for such delay have to be dealt with," she remarked.
When the court enquired for the reason in delay, it was informed that it was because of an application, filed by the other accused, other than Sankaran, who prayed that cognisance ought not be taken of the chargesheet on the ground that the sanction granted by the Ministry of Corporate Affairs (MCA) for prosecution was not proper. It was also submitted that the chargesheet submitted was voluminous & there had been five transfer of judges since 2019.
she retorted, “The magistrate should have decided then & there, where the question of hearing the accused for cognisance. Those applications have cause prejudice to the other accused, you are not letting court take cognisance. This is a very, very serious matter".
She emphasised that when chargesheet is filed in a case, then whether cognisance ought to be taken or not was an issue to be dealt with between the court & the investigating agency. “On the one hand, there are accused seeking time so that cognisance is not being taken, & on the other hand there is an accused seeking release. I am appalled that the courts are taking so much time for whether cognisance is to be taken or not,” she remarked.
The case refers to the Central Government, through MCA, passing an order of investigation by the SFIO into affairs of IL&FS & it's subsidiary companies under various sections of the companies act. After investigation, SFIO arrested the accused & others on charges of adopting various modus operandi, abused their positions, flouted regulatory or legal stipulations for Non-Banking Finance Companies & company policies in its lending operations to various external corporate groups as well as it's group companies to the detriment of the company & its creditors.
Sankaran had been in judicial custody since 2019 & his bail application was rejected that the offence was serious in pite of the fact that in his old age he was suffering from some ailments.
The MCA had granted sanction to SFIO to prosecute all the accused. This sanction had been challenged by Sankaran & other accused in the case before the High Court in 2019 stating that MCA did not apply its mind while granting a sanction based on a 32000 page report in 24 hours of receipt which was accepted by the High Court.
Based on this order of the High Court, the accused, other than Sankaran filed an application before the Special Court objecting to the cognisance being taken by the lower court. While this application was kept pending, the hearing on the cognisance of the chargesheet was adjourned sine die.
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