“The only remedy available is to file an appeal under Section 16 of the KPID Act before the HC against an order passed by the special court,” Justice Rajendra Badamikar noted. Section 438 of CrPC provides for anticipatory bail and 439 bail for those in custody.
Dismissing the bail petition by Shreesha Sasithota Prabhakaran, a director of Sunness Capital India Private Limited which was into stock market brokerage, the judge pointed out that in Suresh Nanda vs CBI case, the Supreme Court had held that the provisions of Passport Act, a special enactment, prevail over section 104 of CrPC, a general provision for impounding any document when it comes to impounding of passport.
The judge also noted that an HC division bench had ruled that in the matter of SC/ST (Prevention of Atrocities) Act, which also is a a special enactment, a criminal appeal has to be filed against an order of the special court rejecting bail to an accused and it is not open to the HC to exercise concurrent jurisdiction under section 438 or 439 of CrPC.
Shreesha is arraigned as accused no. 1 in a cheating case registered at Shankarapuram police station. Apart from sections 420, 419, 406, 403, 120-B and 506 of IPC and sections 4 and 9 of KPID Act, sections 5 and 21(3) of Banning of Un-Regulated Deposit Schemes (BURDS) Act, 2019 have been invoked. Shreesha is in judicial custody.
According to the complaint against Shreesha, he and other accused had allegedly diverted Rs 17.5 crore invested in the form of shares by the complainant and family members. Shreesha’s bail plea was rejected by the trial court a couple of months ago.