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2023 (6) TMI 503 - HC - Money LaunderingSeeking grant of Anticipatory Bail - delay in handing over/delivery of possession of apartments/ commercial units - concurrent jurisdiction casted upon the Court of Session and High Court - HELD THAT - This Court is of the view that this Court has the jurisdiction to entertain the bail application under Section 438 even when the applicant has not approached the Court of Sessions first. To argue upon the limited purposes for which the parties are before this Court today, reference has been made to the twin test which has been provided under the PMLA and which has been relied upon the Courts while considering cases under the Act. The twin conditions serve as a definitive test for the Courts to form an opinion - there is no doubt that in order to link any accused with the offences under the PMLA, the twin test must be satisfied. In the instant case, the respondent/ED has yet not been able to show whether that the Applicant has been charged with or even linked to the Scheduled Offences as provided under the PMLA. Moreover, it has been settled that jail is exception and bail is the rule, as has also been observed in spirit in the landmark judgment passed by the Hon ble Supreme Court in SUSHILA AGGARWAL AND OTHERS VERSUS STATE (NCT OF DELHI) AND ANOTHER 2020 (1) TMI 1193 - SUPREME COURT that arrest should be done in the rarest of the rare case. Even if the authorities are not satisfied then jail is the last weapon in the hand of the Authorities. In the matter at hand, it has been stated that three times the Applicant and the M3M Group were summoned and on all the occasions the representative on their behalf appeared and cooperated in the investigation. Further, the respondent has already seized numerous assets, including cars, cash, jewelry, etc. and also issued letters to bankers of M3M and its Group Companies directing that various bank accounts of the Company and its group concerns be marked as 'debit freeze' accounts. Moreover, the Applicant has yet not been implicated in any Scheduled Offences as provided under the PMLA and in fact, the ECIR does not even find mention of the name of the Applicant or any of the M3M Companies. It has also been submitted that the when summoned by the respondent, one of the representatives on behalf of the Applicant or the M3M Group has always appeared before the respondent for inquiry and investigation. In view of the fact that the Applicant has not been named in the ECIR and that the respondent has not yet been able to implicate the Applicant in any of the Scheduled Offences under the PMLA, in the interest of justice as well as considering the mandate of Article 21 of the Constitution of India, this Court is of the considered opinion that the Applicant may be granted interim protection till the next date of hearing - in the event of any arrest of the Applicant, he shall be released on bail on his furnishing a personal bond of Rs 10,00,000/- with two sureties of the like amount to the satisfaction of the Investigating Agency, subject to the conditions imposed. Application allowed.
Issues Involved:
1. Jurisdiction for Anticipatory Bail Application. 2. Applicability of Twin Conditions under PMLA. 3. Applicant's Cooperation and Conduct. 4. Interim Protection and Conditions. Summary: Jurisdiction for Anticipatory Bail Application: The Applicant approached the High Court directly for anticipatory bail under Section 438 of CrPC, which was contested by the Respondent, arguing that the Applicant should have approached the Court of Sessions first. The Court clarified that Section 438(1) of CrPC provides concurrent jurisdiction to both the High Court and the Court of Session for entertaining anticipatory bail applications. It is discretionary for the Applicant to choose which court to approach, and there is no bar on approaching the High Court directly. Applicability of Twin Conditions under PMLA: The Respondent argued that the twin conditions under Section 45 of PMLA need to be satisfied even for anticipatory bail. The Court acknowledged the twin conditions but noted that the Applicant has not been implicated in any Scheduled Offences under PMLA, nor is his name mentioned in the ECIR. The Court referenced the case of Vijay Agrawal, stating that the twin conditions do not impose an absolute restraint on the grant of bail and should be considered based on the material available on record. Applicant's Cooperation and Conduct: The Applicant and representatives from M3M Group have cooperated with the investigation, appearing when summoned and providing the required information. The Respondent has already seized numerous assets and frozen bank accounts. The primary accused, Lalit Goel, has been granted regular bail, and the Applicant has not been named in the ECIR. Interim Protection and Conditions: Considering the Applicant's cooperation, lack of direct implication in the ECIR, and the mandate of Article 21 of the Constitution, the Court granted interim protection to the Applicant till the next hearing. The Applicant is to be released on bail in the event of arrest, subject to conditions including surrendering his passport, cooperating with the investigation, and not making any inducements or threats. Conclusion: The Court granted interim protection to the Applicant, emphasizing the importance of personal liberty and the need for cooperation in the investigation. The next hearing is scheduled for 5th July 2023, with both parties given time to file additional documents and replies.
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