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2024 (5) TMI 1411 - HC - Money LaunderingMoney Laundering - proceeds of crime - illegal kidney transplantation - respondent herein along with the co-accused hatched a well-planned conspiracy by taking 'Century Gangotri Charitable Hospital' on rent and by pressurizing or alluring/inducing innocent and poor people into illegal kidney transplantation - HELD THAT - As the present petition seeks cancellation of Bail granted to the accused, it is to be kept in view that the Bail granted to the accused can primarily be challenged and be cancelled on the ground that either the Court granting Bail has failed to consider the relevant facts and law applicable to the grant of Bail, or has taken into account irrelevant facts and considerations, or where while granting Bail to the accused or due to supervening circumstances, the Bail granted to the accused deserves to be quashed. The Supreme Court in DEEPAK YADAV VERSUS STATE OF U.P. ANR. 2022 (10) TMI 574 - SUPREME COURT reiterated the principles governing the cancellation of bail and held ' The importance of assigning reasoning for grant or denial of bail can never be undermined. There is prima facie need to indicate reasons particularly in cases of grant or denial of bail where the accused is charged with a serious offence. The sound reasoning in a particular case is a reassurance that discretion has been exercised by the decision maker after considering all the relevant grounds and by disregarding extraneous considerations.' The general directions given in the judgment of SATENDER KUMAR ANTIL VERSUS CENTRAL BUREAU OF INVESTIGATION ANR. 2021 (10) TMI 1296 - SUPREME COURT in relation to the process to be followed on production of the accused, who has not been arrested during the period of investigation, on filing of the Charge-Sheet/Complaint post the completion of investigation, remain the same and is also applicable to Special Acts, including PMLA, and, therefore, to the facts of the present case. Recently, the Supreme Court in TARSEM LAL VERSUS DIRECTORATE OF ENFORCEMENT JALANDHAR ZONAL OFFICE 2024 (5) TMI 837 - SUPREME COURT , has reiterated that a complaint under Section 44 (1) (b) of the PMLA will be governed by Sections 200 to 204 of the Cr. P.C. Therefore, while the Court has the discretion to issue either a warrant or summons, as held in INDER MOHAN GOSWAMI ANR VERSUS STATE OF UTTARANCHAL ORS 2007 (10) TMI 550 - SUPREME COURT , as a general rule, the Court should direct issuance of summons and not warrants on the complaint to the accused who was not arrested till the filing of the complaint. It was further held that Section 437 of the Cr. P.C. will not apply when an accused appears before the Special Court after a summon is issued on a complaint under Section 44 (1) (b) of the PMLA. Considering Section 88 of the Cr. P.C., the Supreme Court held that the same shall apply after filing of the complaint under Section 44 (1) (b) of the PMLA. It confers a discretionary power on the Special Court to call upon the accused to furnish bonds for his appearance before the Court. The object of Section 88 of the Cr. P.C. is to ensure that the accused regularly appears before the Court. When an accused appears before the Special Court on summons issued on the complaint, and offers to submit bonds in terms of Section 88 of the Cr. P.C., therefore, there is no reason for the Special Court to refuse or decline to accept the bonds - The Supreme Court denounced the practice of some of the Special Courts under the PMLA of taking the accused into custody after they appear pursuant to the summons issued on the complaint. The Court held that where, before the filing of the complaint, the accused is not arrested, after the filing of the complaint and after he appears in compliance with the summons, he cannot be taken into custody or forced to apply for Bail. In the present case, the learned Trial Court has taken cognizance of the fact though the ECIR was registered in the year 2017; the petitioner took more than four and a half years to investigate the case; and, the petitioner consciously did not arrest the respondent during the investigation. Applying the principles of Satender Kumar Antil, the learned Trial Court, therefore, held that the rigours of Section 45 of the Act do not apply. In fact, after the judgment of the Supreme Court in Tarsem Lal, no fault can be found in the above view of the learned Trial Court. As far as Section 436A and Section 428 of the Cr. P.C. are concerned, though again the learned counsel for the petitioner is right in his submission that these provisions were not applicable to the facts of the present case and, at the present stage, however, the learned Trial Court has merely used these provisions, their object, and the principles governing them, to supplement force to its decision to release the respondent on bond. The Impugned Order cannot be faulted on this account as well. There are no merits in the challenge of the petitioner to the Impugned Order - petition dismissed.
Issues Involved:
1. Challenge to the Order granting bail. 2. Allegations and criminal antecedents of the respondent. 3. Applicability of Section 45 of PMLA and general principles for bail. 4. Consideration of previous judgments and legal principles. 5. Whether the Trial Court erred in granting bail. Summary: 1. Challenge to the Order granting bail: This petition was filed u/s 482 read with u/s 439(2) of Cr. P.C. challenging the Order dated 22.08.2022 by the Trial Court granting bail to the respondent in a case involving allegations under PMLA. 2. Allegations and criminal antecedents of the respondent: The petitioner alleged that the respondent was involved in illegal kidney transplantation, acquiring proceeds of crime amounting to Rs. 89 lakhs. The respondent had a history of criminal activities, including multiple FIRs and cases under IPC, TOHO Act, and PMLA. The respondent was previously convicted and sentenced to imprisonment and had absconded multiple times. 3. Applicability of Section 45 of PMLA and general principles for bail: The petitioner argued that the Trial Court erred in not applying the rigours of Section 45 of PMLA and general principles for bail. The respondent was not arrested during the investigation, and the petitioner contended that the Trial Court should have considered the respondent's criminal antecedents and potential to abscond. 4. Consideration of previous judgments and legal principles: The Trial Court relied on the judgment in Satender Kumar Antil v. CBI, which provides guidelines for granting bail when the accused was not arrested during the investigation. The Supreme Court's judgment in Tarsem Lal v. Directorate of Enforcement further clarified that when an accused appears in response to a summons and was not arrested during the investigation, they should not be taken into custody or forced to apply for bail. 5. Whether the Trial Court erred in granting bail: The High Court found that the Trial Court correctly applied the principles from Satender Kumar Antil and Tarsem Lal, noting that the respondent was not required to apply for bail as he was not arrested during the investigation. The amount involved was less than Rs. 1 crore, invoking the proviso to Section 45 of PMLA. The High Court dismissed the petition, affirming the Trial Court's decision to release the respondent on bond, subject to conditions. Conclusion & Directions: The High Court dismissed the petition, allowing the respondent to be released forthwith if not required in any other case. The judgment clarified that it would not affect any future applications for custody or bail in other pending cases. The observations were limited to the issue of cancellation of bail and did not address the merits of the case pending before the Trial Court.
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