9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2022 (2) TMI 1011 - HC - Money LaunderingSeeking grant of anticipatory bail - Money Laundering - proceeds of crime - scheduled offences - fraudulently inducing the banks to release loans using false documents - misappropriation in allocation of purchase orders for procurement of medicines and other medical equipment intended to be used in various ESI dispensaries in Telangana - requirement of compliance with Section 41-A of the Cr.P.C. - return of remand application, permissible or not. Whether the authorized authorities have to comply with Section 41-A of the Cr.P.C. before arresting a person under Section 19 of the PMLA? - HELD THAT - The provisions of the Cr.P.C. will be applicable to PMLA proceedings as long as there is no inconsistency between both the statues. In case of any inconsistency or where separate provisions exist in both the statutes governing the same subject matter, the PMLA will override Cr.P.C. - What is sought to be provided under Section 41-A of the Cr.P.C. is provided under Section 19 of the PMLA. Further, as stated above, under Section 65 r/w Section 71 of the PMLA, Cr.P.C. will only apply where there is no inconsistency between both the statutes. In the present case, there is an inconsistency between the procedure of arrest as provided under Section 19 of the PMLA and Section 41 41-A of the Cr.P.C. Therefore, PMLA being a special statute will prevail over the Cr.P.C. The provisions relating to arrest and the protections under Cr.P.C were made applicable to the D C Act as no express provision of arrest is provided under the said Act. The power of arrest was impliedly read into the he D C Act by broadly interpreting Section 22(1)(d) which provides that the Inspector has such other powers as may be necessary to carry out the purposes of the D C Act. To check the wide power of the Inspector, the Court held that the arrests should be made in accordance with the Cr.P.C. implying the applicability of Section 41-A. However PMLA provides a specific procedure for arrests and enough safeguards to check illegal arrests. Thus, this Court holds that Sections 41 and 41A of the Cr.P.C. is not applicable to arrests made under Section 19 of the PMLA. Whether the Designated Court can return a remand application? - non-compliance of Section 41-A of the Cr.P.C. - HELD THAT - The remand applications were returned. According to this Court, the Designated Court cannot return a remand application filed under Section 167(2) of Cr.P.C. It is relevant to note that a Court performs a judicial function while deciding an application for remand under Section 167(2) of the Cr.P.C. The Court while exercising the judicial function under Section 167(2) of the Cr.P.C. is bound to pass a judicial order by applying its mind. The Court under Section 167 of the Cr.P.C. by passing a judicial order has to, where there are adequate grounds for proceeding with the investigation, remand the accused to judicial custody or where no such further investigation is required release him on bail on satisfying conditions as prescribed - It is also relevant to note that neither the Cr.P.C. nor the Criminal Rules of Practice have any provisions conferring the power on the Court to return an application seeking remand under Section 167(2) of the Cr.P.C. While the Code of Civil Procedure under Order VII Rules 10 10A provides for return of plaint, no such provision/procedure is provided under the Cr.P.C. In the present case, the Designated Court had no power to return the remand applications filed by the DOE. Even if the Designated Court had come to a conclusion that Section 41-A of the Cr.P.C. was not complied with, it was incumbent on it to pass a reasoned judicial order rejecting the remand application. The Designated Court could not have let off the accused, against whom serious allegations of money laundering exist, by simply returning the remand application and not passing a reasoned judicial order. Thus, the Designated Court had committed grave error by returning the applications filed by the DOE under Section 167(2) of Cr.P.C. Therefore, the contentions advanced on behalf of the accused that a remand application can be returned is unsustainable - both the orders dated 18.12.2021 returning the remand application are erroneous, illegal and are liable to be quashed. Whether the petitioner is entitled for anticipatory bail? - HELD THAT - On the score of anticipatory bail, it is trite knowledge that Section 438 CrPC is made applicable only in the event of there being an apprehension of arrest. The petitioners in the writ petitions herein are all inside the prison bars upon arrest against all cognizable offences, and in the wake of the aforesaid question relieving the petitioners from unnecessary disgrace and harassment would not arise - it can be said that an ordinary bail is sought by an accused to be released from the custody of the police, whereas anticipatory bail application is filed in anticipation of arrest and to prevent the police from taking custody of the accused. If the person is not in custody of the police, an application under Section 438 of the Cr.P.C. is maintainable. The Court has to see whether a person is apprehending arrest and subsequent custody of the police. Though the accused was arrested under Section 19 of the PMLA, he was released following the impugned order dated 18.12.2021. He was not in DOE S custody when the Crl.P.No. 10021 of 2021 was filed, therefore, he had filed an anticipatory bail application apprehending that DOE might take him into custody again. Therefore, the anticipatory bail application filed by the accused in maintainable. Section 45 of the PMLA prescribes twin conditions to be satisfied for granting bail. Bail can only be granted if the Public Prosecutor has been given an opportunity to oppose the release of accused and the Court should satisfy itself, based on reasonable grounds, that the accused is not guilty of the alleged offence and he is not likely to commit any such offence. In addition to the said conditions, under Section 45(2), the Court should also consider the other limitations on granting bail as prescribed under the Cr.P.C. - only when reasonable grounds exist regarding the innocence of the accused bail should be granted. In the present case, the allegations against the accused are that he is the main conspirator and has derived proceeds of crime in the form of movable and immovable assets. The accused along with other IMS officials and private persons is alleged to have conspired and misappropriated the allocation of purchase orders meant for procuring medicines and medical equipment - It is relevant to note that the DOE had enclosed the grounds of arrest along with the arrest order in Form No.III issued under Rule 6 of the Rules, 2005. In the grounds of arrest, details about the registration of crime, issuance of summons, recording of statements, etc. are specifically mentioned. It was also stated that the respondents are not cooperating in the investigation. Therefore, according to the DOE, considering the seriousness and graveness of the allegations, the respondent was arrested and produced him before the Designated Court along with application under Section 167 of Cr.P.C. Thus, according to the DOE, the authorized officer has sufficient material in his possession to believe that the respondent is guilty of the offences under the PMLA. This Court could not, prima facie, satisfy itself that the accused is not guilty. Therefore, the anticipatory bail application is dismissed.
Issues Involved:
1. Whether the authorized authorities have to comply with Section 41-A of the Cr.P.C. before arresting a person under Section 19 of the PMLA? 2. Whether the Designated Court can return a remand application? 3. Whether the petitioner in Crl.P. No. 10021 of 2021 is entitled to anticipatory bail? Issue-wise Detailed Analysis: Issue 1: Compliance with Section 41-A of the Cr.P.C. before arresting under Section 19 of the PMLA The Court analyzed whether Section 41-A of the Cr.P.C. applies to arrests made under Section 19 of the PMLA. It was noted that Section 19 of the PMLA provides a specific procedure for arrest, which includes: - The officer must have a reason to believe, based on material in possession, that the person is guilty of an offence under PMLA. - The reason for such belief must be recorded in writing and informed to the arrested person. - The officer must forward a copy of the arrest order and material to the Adjudicating Authority in a sealed envelope. The Court concluded that the PMLA, being a special statute, overrides the Cr.P.C. in cases of inconsistency, as per Sections 65 and 71 of the PMLA. The safeguards under Section 41-A of the Cr.P.C. are adequately provided under Section 19 of the PMLA. Hence, Section 41-A of the Cr.P.C. is not applicable to arrests made under Section 19 of the PMLA. Issue 2: Power of the Designated Court to return a remand application The Court examined whether the Designated Court could return a remand application filed under Section 167(2) of the Cr.P.C. The Court found that the Designated Court performs a judicial function while deciding on remand applications and must pass a reasoned judicial order, either granting remand or releasing the accused on bail. The Designated Court does not have the power to return the application. The orders dated 18.12.2021, returning the remand applications, were found to be erroneous and illegal, thus quashed. Issue 3: Entitlement to anticipatory bail The Court considered whether the petitioner in Crl.P. No. 10021 of 2021 is entitled to anticipatory bail. It was noted that the accused was not in DOE's custody when the anticipatory bail application was filed, making the application maintainable. However, the Court emphasized the twin conditions under Section 45 of the PMLA for granting bail, which include: - The Public Prosecutor must be given an opportunity to oppose the release. - The Court must be satisfied that there are reasonable grounds for believing that the accused is not guilty and is not likely to commit any offence while on bail. Given the serious allegations of economic offences and the accused's non-cooperation with the investigation, the Court was not prima facie satisfied that the accused was not guilty. Therefore, the anticipatory bail application was dismissed. Conclusion: - Crl.P.Nos. 9825 and 9846 of 2021 were allowed, setting aside the orders dated 18.12.2021 returning the remand applications. - The accused were directed to surrender before the Designated Court within ten days. - Crl.P.No.10021 of 2021 for anticipatory bail was dismissed.
|
