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TMI Blog2021 (9) TMI 478X X X X Extracts X X X X X X X X Extracts X X X X ..... d violative of Article 14 21 of the Constitution of India and not just applicability of twin conditions to scheduled offences - Once, it is held that twin conditions enumerated under Section 45 of the PMLA Act have no application while granting bail to accused of money laundering, it is to be ascertained, whether the trial Court granted bail on irrelevant considerations. Whether Trial Court while granting bail, acted upon the irrelevant material and ignored the relevant material? - HELD THAT:- The prosecution case rests and founded on documentary evidence and, therefore, even if applicant is released on bail, chances of tampering the prosecution evidence are weak and faint. Apart from that, it is worthwhile recording here that NSEL Management, Persons, Defaulters of NSEL and persons associated with Aastha Group (Mohit Aggarwal and Sham Kejriwal) have been granted bail either by Special Court or by the High Court, having a greater role than the present applicant. Mr. Chavan, the learned Senior Counsel for the respondent, has placed for my perusal, orders granting bail to twenty co-accused, who may have similar or greater role than the present accused. Even otherwise offence u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... application on 18th June, 2021, there was no change in circumstance to review its first order (iv) that twin conditions of Section 45(1) of the PMLA Act were not adhered to by the learned Judge while granting bail to the respondent no.1. 6. Two points of law of some consequences have fallen for decision in this application; (i) Whether Section 439(2) of the Cr.P.C. can have no application unless accused is released from the custody ? (ii) Whether decision in Nikesh Tarachand Shah 2016 (11) SCC 1 has lost its significance because of amendment in Section 45(1) of the PMLA Act AND (iii) Whether Trial Court while granting bail, acted upon the irrelevant material and ignored the relevant material ? FACTUAL MATRIX-PROSECUTION CASE : 7. Briefly stating, case of the prosecution is that the MRA Marg Police Station registered First Information Report No.216 of 2013 dated 30th September, 2013 under Sections 120B, 467 and 471 of the Indian Penal Code, 1861 ( IPC for short) against M/s. National Spot Exchange Limited (hereinafter referred to as NSEL ), its directors and key officials of NSEL, 25 defaulters of NSEL and others on a complaint filed by the S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eived ₹ 21,74,000,00/- from M/s. Aastha Group of Companies, i.e., M/s. Aastha Minmet India Limited, Aastha Alloy Steel Limited during the September, 2012 to April, 2013. 10. Investigation disclosed, that earlier M/s. Vihang Housing LLP was formed on 21st May, 2012 with the partners; Vihang Pratap Sarnaik; Purvesh Pratap Sarnaik; Yogesh Kishor Chandigala; Vihang Infrastructure Pvt. Ltd.; Vihang Constructions Hospitality LLP. On 8th November, 2012, a retiring agreement was executed and partners of M/ s. Vihang Infrastructure Pvt. Ltd. and Vihang Constructions Hospitality LLP exited from the Vihang Housing LLP. On the same day of retiring the old partners, a LLP agreement was executed vide which new partners, Mr. Pratap Sarnaik, Mr. Mohit Aggarwal, Mrs. Shilpa Aggarwal and M/s. Aastha Alloy Steel Pvt. Ltd. were inducted and name of M/s. Vihang Housing LLP was changed to M/s. Vihang Aastha Housing Projects LLP. 11. It is the prosecution s case that the respondent no.1 received ₹ 10.50 Crores from M/s. Vihang Aastha Housing Projects LLP during December, 2012 to September, 2013. 12. Investigation revealed that the respondent no.1 was a land aggregator based in Ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er for short). 15. Applicant filed complaint/charge-sheet on 4 th June, 2021. Cognizance of the same was taken on 16th June, 2021. 16 Copy of the charge-sheet of the complaint was received by the respondent no.1 on 18th June, 2021. 17 On 19th July, 2021, respondent no.1 filed another bail application before the Special PMLA Court. 18. The learned Special PMLA Court allowed the application and granted bail on the following grounds: (I) Filing of complaint/charge-sheet constitutes change in circumstance. It indicates investigation was over. (ii) That prosecution has not made any efforts to arrest partners/directors of Vihang Aastha Housing Projects LLP, from whom alleged Proceeds of Crime were received by the, applicant-accused. (iii) Since after rejection of the first bail application, there was no progress in the investigation to justify further detention of the applicant. (iv) Applicant-accused had withdrawn his objection to making the attachment of his properties absolute in proceedings MA 451 of 2016. 19. Before adverting to the contentions of the applicants, let me deal with, preliminary objection, raised by Mr. Chavan, the learned Senior ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etting at liberty of one arrested or imprisoned upon any action, either civil or criminal, on surety taken for his appearance on a day and place certain. It is submitted that bail means actual/physical release of a person from legal custody and not just order releasing on bail. In support of the submissions, he relied on the following authorities; (1) Amitchand and Raghunath v. Crown Indian Law Reports (East Punjab Series) Page 515; (2) State of MP v. Narayan Prasad Jaiswal (1963) 2 Criminal Law Journal 375; (3) Managing Director Balasaheb V. Kaashinath Kamble (2009) 2 SCC 88. 21. Mr. Chavan the learned Senior Counsel further submitted in this case, since prosecution, itself sought stay to Release of the respondent from the custody, application was obviously premature and it is required to be rejected on this ground alone. 22. Mr. Singh the learned ASG controverted submissions of Mr. Chavan and would submit that scope of Section 439(2) and right of prosecution under Section 439(2) to challenge unsustainable and perverse order cannot be narrowed down or curtailed by subjecting it to condition of actual release of accused. Mr. Singh submitted, this interp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n released on bail under this Chapter will have to be strictly construed as meaning any person who has been released on bail by a Court. (f) The subsequent part of the Section entitles a Court to direct re-arrest and confinement to custody if the bail order has been availed of and in cases where the bail order has not been availed of, the subsequent part of the Section would be rendered redundant. (g) The Section is required to be interpreted rationally and in keeping with the purpose for which it was put on the statute book. 23. The next authority, relied on by Mr. Singh is the order passed in the case of, State of Maharashtra v. Santosh Hiraman Purankar (2005) SCC On-line Bombay 246. In this case the State sought cancellation of anticipatory bail granted in the offence punishable under Section 306 of the IPC. Besides, merit challenge was also founded on the ground that accused/respondent have violated conditions on which anticipatory bail was granted in their favour. In the sense neither they reported to the police station at any point of time after the order was passed, though that was one of the conditions. Respondent/accused in the said case relied on the ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to where accused is physically released or not is quite irrelevant. Mr. Singh, therefore, submitted that the ratio laid down in the case of B.S.Rawat (Supra) would not deter this Court from entertaining the application and, therefore, preliminary objection raised by respondent/accused be overruled and application be decided on merits. 25. I have perused the judgments cited by the learned counsel in support of their respective contentions. In my view, Mr. Singh the learned ASG has rightly pointed out that judgment in the case of Mahendra M. Shah (Supra) is per incuriam since the view taken in of Madam Ayabo (Supra) and the order in the case of Santosh H. Purankar (Supra) as to the scope and interpretation of Section 439(2) of the Cr.P.C. was not brought to the notice of Justice Kathawala. The Hon ble Apex Court of Sandip Bafna 2014(16) SCC 623 , has held; that a decision or judgment can be per-incuriam, any provision in statute, rule or regulation, which was not brought to the notice of the Court. A decision or judgment can also be per-incuriam, if it is not possible to re-concile its ratio with that of previously pronounced judgment of co-equal or larger bench; or if th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d would be applicable in the instant case. This submission is made on following two grounds, viz. (i) binding precedent of the Hon ble Apex Court holding that twin conditions apply; Reliance is placed on the judgment of the Apex Court in P.Chidambaram (2018) 10 SCC 753 (ii) defect found by the Hon ble Apex Court in Nikesh T. Shah (Supra) has been rectified by the legislative amendment. 29. Mr. Singh submitted that reading of Nikesh T. Shah would show that, only two conditions were struck down and not Section 45 in its entirety. It is submitted, that the unamended Section 45 was read down by the Hon ble Apex Court, as applying to scheduled offences only, which excludes, the offence of money laundering . Submission, is that after the judgment of the Apex Court in the case of Nikesh T. Shah (Supra), provisions of Section 45(1) have been amended and amended provisions are applicable to the, offence of money laundering , alone and nothing else. Mr. Singh submitted that twin conditions were not found per-se arbitrary or unreasonable but its application to the offences in Schedule A were found to be arbitrary and, therefore, the legislature has amended the said section a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the PMLA Act. Mr. Singh submitted that the judgment in the case of Samir Bhujbal was delivered, before the judgment in the case of P. Chidambaram and, therefore, this judgment is to be kept out of consideration, while deciding the issue, as to the application of twin conditions to the offence of money laundering . In so far as the judgment in the case of, Dipak Kochhar, is concerned, Mr. Singh submitted, the learned Judge of this Court has not considered the, binding precedent, of the Apex Court in the case of P.Chidambaram (Supra). Thus, Mr. Singh, learned ASG submitted that judgments in the case of Samir Bhujbal and Dipak Kochhar were of no assistance to the respondent-accused. Mr. Singh, the learned ASG would submit, although the Delhi High Court in the case of Upendra Rai 2009 SCC Online 9086 has followed the Sameer Bhujbal (Supra) and taken a view that twin conditions do not revive, yet, the Hon ble Apex Court in the SLP Diary No.5150 of 2020 has stayed the operation of the impugned order passed in case of Upendra Rai. Therefore, it is argued that the respondents can not place reliance on the judgments in the case of Samir Bhujbal (Supra), Deepak Kochhar (Supra) and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on irrelevant considerations. 35. Mr. Singh, the learned Additional Solicitor General would contend that the Special Judge granted bail to the respondent no.1 by ignoring the relevant material , indicating prima-facie, involvement of the respondent no.1; yet has taken into account irrelevant material which has no relevance to question of grant of bail to the respondent no.1. While arguing the scope of Section 439(2) of the Cr.P.C., Mr. Singh, submitted that when it appears to the superior Court that the Court granting bail acted on the irrelevant material and there is no application of mind or where the Court does not take note of any statutory bar for grant of bail, order for cancellation of bail can be made. 36. Mr. Singh s main point of argument, is that the learned Judge, while rejecting the first bail application as well as subsequent bail application, found applicant s complicity in laundering of proceeds of the crime by acquiring the property out of the amount of ₹ 10.50 Crores as untainted properties. Thus, submitted, once the Court was satisfied about of applicant s complicity in the activity of money laundering, applicant could not have been released on b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t while rejecting first bail application, yet fling of the charge-sheet, itself would not constitute a change in the circumstance. According to Mr. Singh, it was irrelevant consideration. On the point of irrelevant considerations\ , Mr. Singh, relied on the following judgments: (1) Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav and Anr. (2004) 7 Supreme Court Cases 528; (2) Nikhil Malik v. State of Himachal Pradesh 2019 SCC OnLine HP 1294; (3) Virupakshappa Gouda and Anr. v. the State of Karnataka in Criminal Appeal No.601 of 2017 in Criminal Appeal No.601 of 2017 In the case of Kalyan Chandra (Supra), accused Pappu Yadav, was granted bail by the High Court in eighth, successive bail application. Earlier six applications were rejected and SLPs were dismissed. Fifth successive application was allowed; however, in appeal, the Hon ble Apex Court cancelled the bail as no fresh grounds were recorded by the Hon ble Apex Court while granting bail. In my view, this authority does not assist the prosecution. In Nikhil Malik (Supra), High Court of Andhra Pradesh declined, to release the applicant on the ground of gravity and seriousness of the crime; although t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the bail (First Bail) to the respondent no.1 on the following grounds: (I) There was prima-facie material showing complicity of the applicant in the activity of laundering proceeds of the crime; (ii) Investigation was in progress; (iii) Partners/Directors of Vihang Aastha Housing Projects LLP were remained to be arrested; (iv) Release of the applicant would adversely hamper the investigation as to the crime proceeds. However, while granting bail in subsequent application, the trial Court found, after rejecting the first application, there was no progress in the investigation at all, in-as-much as observations in paragraph no.9 of the order would show that no efforts were made by the prosecution to question co-accused at all. Although, it is submitted that the co-accused were granted protection by the Apex Court on 30th June, 2021, however, the order has not precluded the prosecution from questioning the co-accused, who were the partners/directors of the Vihang Aastha Housing Projects LLP. Nevertheless even before me, applicants have not placed any material suggesting progress in the investigation as against the respondent-accused. This being the position, it ..... X X X X Extracts X X X X X X X X Extracts X X X X
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