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2020 (12) TMI 1129 - HC - Money LaunderingGrant of pre-arrest bail - petitioner submitted that the relief of anticipatory bail sought by the petitioner is not premature and that the petitioner's reliance on a news article of a reputed news agency for apprehension of arrest by the respondent cannot tantamount to being speculative - whether the petition filed under Section 438 of the Cr.P.C. before the High Court without exhausting remedy before the Court of Sessions Court is maintainable or not? - HELD THAT - It is trite law that in case of economic offences, which is having an impact on the society, the Court must be very slow in exercising the discretion under Section 438 of Cr.P.C. But on perusal of the factual matrix of the case on hand, prima facie, there is no material to come to the conclusion that the act of the petitioner is having impact on the financial status of the country as a whole and in that light the ratio laid down in P.Chidambaram 2019 (12) TMI 186 - SUPREME COURT is not applicable to the facts of the present case. The power under Section 438 of Cr.P.C. is an extraordinary power which was incorporated before other provisions for granting of bail under Section 437 and 439 of Cr.P.C. and judicial discretion is a matter regard and required to be exercised with due care and caution. Grant or refusal of bail is entirely discretionary and discretion should depend upon the facts and circumstances of each case. Certain parameters have to be kept in mind while considering or dealing with the application for anticipatory bail. On perusal of the factual matrix on hand, the allegation leveled against the petitioner has to be considered and appreciated during the course of trial. The only consideration which has to be looked into for the purpose of granting or refusing bail is whether the accused would be readily available for trial and whether he is likely to abuse the discretion granted in his favour by tampering with evidence. If there is no prima facie case, there is no question of considering other circumstances. Even where a prima facie case is established, the approach of the Court in the matter of bail is not that the accused should be detained by way of punishment, but whether the presence of the accused would be readily available for trial or that he is likely to abuse the discretion granted in his favour. Section 438 Cr.P.C. clearly stipulates in the beginning statement itself that when a person has a reasonable apprehension to believe that they can be arrested on an accusation for commitment of a non-bailable offence, they can move the High Court or the Court of Sessions for grant of an anticipatory bail. The approaching of the petitioner to the High Court has been discussed earlier and held that the petition for anticipatory bail filed before this Court is very well maintainable - The power to grant anticipatory bail must be exercised by the Court in very exceptional cases. The Court must be satisfied that there is a reasonable cause and a reasonable ground for grant of anticipatory bail. Section 438 Cr.P.C. protects the right to life and personal liberty of such persons by providing them with a remedy against frivolous detention. In a country where rifts and rivalries are common, its citizens should have a remedy which prevents disgracing their right to life and personal liberty. When a person apprehends arrest and approaches a Court for anticipatory bail, his/her apprehension has to be based on concrete facts relatable to a specific or particular offence. Petition seeking anticipatory bail should contain clear and essential facts relating to the offence, and why the applicant reasonably apprehends his/her arrest, as well as his/her version of the facts - In the present case, the apprehension expressed by the petitioner is based on news item and the respondent also admitted that there was news item and they have initiated investigation under the Prevention of Money Laundering Act against the petitioner. Since the news item appeared in the online news is pursuant to the CBI investigation, in which the petitioner has got anticipatory bail, now the apprehension stated by the petitioner is bona fide and as stated supra, the respondent themselves admitted that they have initiated investigation against the petitioner under the Prevention of Money Laundering Act. Thus, this Court is of the opinion that the apprehension of arrest by the respondent Directorate Enforcement is well founded and reasonable as the petitioner is a public person. This Court cannot lost sight of the fact that the news article had received wide publication/coverage in the media, both electronic and print. In the aforesaid facts and circumstances of the case, the interest of justice warrants grant of anticipatory bail to the petitioner in the investigation being conducted by the respondent under the Prevention of Money Laundering Act. Further, the petitioner is duty bound to co-operate with the investigation by the respondent at all stages. The petition is allowed - the petitioner is granted anticipatory bail in connection with the respondent investigation.
Issues Involved:
1. Maintainability of the anticipatory bail petition before the High Court without approaching the Sessions Court. 2. Validity of apprehension of arrest based on a news article. 3. Applicability of Section 45 of the PML Act post the 2018 amendment. 4. Considerations for granting anticipatory bail in economic offences under the PML Act. Detailed Analysis: 1. Maintainability of the Anticipatory Bail Petition: The court examined whether the petitioner could directly approach the High Court for anticipatory bail without first approaching the Sessions Court. The court highlighted that Section 438 Cr.P.C. confers concurrent jurisdiction on both the High Court and the Sessions Court. Although it is generally prudent to approach the Sessions Court first, exceptional circumstances can justify a direct approach to the High Court. The court noted that since the petitioner had been granted anticipatory bail in a related matter by the High Court previously, he had valid reasons to approach the High Court directly. Thus, the petition was deemed maintainable. 2. Validity of Apprehension of Arrest: The petitioner based his apprehension of arrest on a news article stating that the Enforcement Directorate (ED) would soon file a case under the PML Act against him. The court considered whether such an apprehension was reasonable. The court noted that the ED had initiated an investigation under the PML Act and that the news article had received wide coverage. Therefore, the court found the petitioner’s apprehension of arrest to be genuine and well-founded. 3. Applicability of Section 45 of the PML Act Post-2018 Amendment: The court analyzed whether the 2018 amendment to Section 45 of the PML Act, which substituted the words "under this Act" for "punishable for a term of imprisonment of more than three years under Part A of the Schedule," revived the twin conditions for bail. The court referenced the Supreme Court’s decision in Nikesh Tarachand Shah, which declared the twin conditions unconstitutional. The court concluded that the amendment did not revive the twin conditions, as the fundamental issues identified by the Supreme Court remained unaddressed. Therefore, the twin conditions for bail under Section 45 of the PML Act were not applicable. 4. Considerations for Granting Anticipatory Bail: The court reiterated that anticipatory bail is an extraordinary remedy and should be granted sparingly, especially in cases involving economic offences. However, it emphasized that the petitioner’s personal liberty, a fundamental right under Article 21 of the Constitution, must be protected. The court considered factors such as the petitioner’s cooperation with the investigation, the absence of prima facie evidence of his involvement in money laundering, and his status as a public figure unlikely to abscond. The court concluded that the petitioner’s apprehension of arrest was reasonable and granted anticipatory bail with stringent conditions to ensure his cooperation with the investigation. Conclusion: The court granted anticipatory bail to the petitioner, subject to conditions ensuring his cooperation with the investigation and preventing tampering with evidence. The court emphasized the importance of balancing the petitioner’s personal liberty with the need for a fair and unbiased investigation.
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