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2023 (2) TMI 1045 - SC - Money LaunderingSeeking grant of Anticipatory bail - Money Laundering - predicate offence/scheduled offence - systematic conspiracy has been planned and executed by a number of infrastructure companies based at Hyderabad in collusion with a few Government officials and IT management companies to illegally win etenders - large amounts of bribes running into crore(s) of rupees have exchanged hands using hawala channels - public funds meant for development activities have been diverted and siphoned off for personal illegal enrichment and for making illegal bribe payments - bogus and overbilling by the infra companies. HELD THAT - By the impugned judgment and order, while granting anticipatory bail the High Court has observed that the provisions of Section 45 of the Act, 2002 shall not be applicable with respect to the anticipatory bail applications/proceedings under Section 438 Cr.PC. For which the High Court has relied upon the decision of this Court in the case of NIKESH TARACHAND SHAH VERSUS UNION OF INDIA AND ANR. 2017 (11) TMI 1336 - SUPREME COURT In the case of THE ASST. DIRECTOR ENFORCEMENT DIRECTORATE VERSUS DR. V.C. MOHAN 2022 (1) TMI 511 - SUPREME COURT , this Court has specifically observed and held that it is the wrong understanding that in the case of Nikesh Tarachand Shah this Court has held that the rigour of Section 45 of the Act, 2002 shall not be applicable to the application under Section 438 Cr. PC. In the case of Dr. V.C. Mohan in which the decision of this Court in the case of Nikesh Tarachand Shah was pressed into service, it is specifically observed by this Court that it is one thing to say that Section 45 of the Act, 2002 to offences under the ordinary law would not get attracted but once the prayer for anticipatory bail is made in connection with offence under the Act, 2002, the underlying principles and rigours of Section 45 of the Act, must get triggered although the application is under Section 438 Cr.PC. - the observations made by the High Court that the provisions of Section 45 of the Act, 2002 shall not be applicable in connection with an application under Section 438 Cr.PC is just contrary to the decision in the case of Dr. V.C. Mohan and the same is on misunderstanding of the observations made in the case of Nikesh Tarachand Shah. Once the rigour under Section 45 of the Act, 2002 shall be applicable the impugned judgment and order passed by the High Court granting anticipatory bail to respondent No. 1 is unsustainable. It can be seen that the High Court has not at all considered the nature of allegations and the seriousness of the offences alleged against respondent No. 1. As per the catena of decision of this Court, more particularly, observed in the case of P. CHIDAMBARAM VERSUS DIRECTORATE OF ENFORCEMENT 2019 (9) TMI 286 - SUPREME COURT in case of economic offences, which are having an impact on the society, the Court must be very slow in exercising the discretion under Section 438 of Cr.PC. The rigour of Section 45 of the Act, 2002 shall be applicable even with respect to the application under Section 438 Cr.PC and therefore, the impugned judgment and order passed by the High Court granting anticipatory bail to respondent No. 1 herein is unsustainable - appeal allowed.
Issues Involved:
1. Legality of the High Court's decision to grant anticipatory bail. 2. Applicability of Section 45 of the Prevention of Money Laundering Act, 2002 (PMLA) to anticipatory bail applications under Section 438 Cr.PC. 3. Consideration of the seriousness of the offences and allegations against the respondent. 4. Whether the acquittal/discharge of other accused impacts the investigation against respondent No. 1. Detailed Analysis: 1. Legality of the High Court's Decision to Grant Anticipatory Bail: The Supreme Court reviewed the High Court's judgment dated 02.03.2021, which granted anticipatory bail to respondent No. 1 in connection with the Enforcement Directorate's (ED) case for money laundering under Section 3 of the PMLA, 2002. The High Court's decision was challenged on the grounds that it did not consider the rigour/bar under Section 45 of the PMLA, 2002, and relied on the Supreme Court's decision in Nikesh Tarachand Shah Vs. Union of India, which was later clarified in Dr. V.C. Mohan's case. 2. Applicability of Section 45 of PMLA to Anticipatory Bail Applications: The Supreme Court emphasized that the High Court erred in its interpretation of Section 45 of the PMLA, 2002. The High Court had observed that Section 45 does not apply to anticipatory bail applications under Section 438 Cr.PC, based on the Nikesh Tarachand Shah case. However, the Supreme Court clarified in Dr. V.C. Mohan's case that the rigour of Section 45 must get triggered even in anticipatory bail applications under Section 438 Cr.PC when dealing with offences under the PMLA, 2002. Therefore, the High Court's observations were contrary to the Supreme Court's clarification in Dr. V.C. Mohan's case. 3. Consideration of the Seriousness of the Offences and Allegations: The Supreme Court noted that the High Court did not adequately consider the seriousness of the allegations of money laundering against respondent No. 1. The allegations involved a systematic conspiracy by infrastructure companies and government officials to rig e-tenders, resulting in significant financial misconduct and the generation of black money. The Supreme Court emphasized that economic offences have a severe impact on society and require thorough investigation. The High Court's approach was criticized for treating the matter as if it were an ordinary offence under the IPC, without recognizing the gravity of the money laundering charges. 4. Impact of Acquittal/Discharge of Other Accused on Investigation Against Respondent No. 1: The Supreme Court addressed the argument that the acquittal or discharge of other accused in the predicate offences should impact the investigation against respondent No. 1. It was clarified that the ongoing investigation against respondent No. 1 for scheduled offences under the PMLA, 2002, is sufficient to continue the enquiry. The Supreme Court rejected the notion that the acquittal of other accused could be a ground to halt the investigation against respondent No. 1. Conclusion: The Supreme Court concluded that the High Court's judgment granting anticipatory bail to respondent No. 1 was unsustainable. The judgment was quashed and set aside, and respondent No. 1 was to be dealt with according to the law. The Supreme Court also clarified that if respondent No. 1 files a regular bail application after arrest, it should be considered based on the merits and material collected during the investigation. The appeal was allowed, and no costs were imposed.
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