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TMI Blog2021 (12) TMI 1149X X X X Extracts X X X X X X X X Extracts X X X X ..... ith regard to the twin conditions for grant of bail which had specifically been declared to be unconstitutional as also in the absence of any validating law in this regard with retrospective effect. It was also brought to this Court s notice that the Petitioner has been in custody for a period of about 8 years. Justice delayed is justice denied is the cornerstone in delivering justice and a speedy trial forms the essence of the entire criminal justice system. At the same time, justice hurried is justice buried and therefore, there has always existed a need to strike a balance between the two adages in the delivery of justice to the people. The fundamental right to speedy trial is a result of judicial activism shown in respect of Article 21. In USA, the right to speedy trial has been guaranteed by the VI Amendment of the US Constitution. The VI Amendment of the US Constitution says that in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial - The fundamental right to speedy trial is peculiar in character and is generically different from other constitutional rights of the accused. The right is in the interest of the accused if he i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le Supreme Court, took over the said investigations and filed a charge-sheet dated 11.12.2014 against the Petitioner and others under Sections 120B, 294, 341, 406, 409, 467, 471, 506 read with 34 of the I.P.C. and Sections 3, 4 and 5 of the Prize Chits and Money Circulation Schemes (Banning) Act, 1978 (hereinafter referred to as the PCMCSB Act for brevity) before the learned Special C.J.M., CBI, Bhubaneswar. On 07.01.2015, ED took the Petitioner to custody and recorded his statement under Section 50 of the PML Act and the said recording continued till 15.01.2015. Learned Sessions Judge, Khurda, upon an application/ Complaint case filed by ED, took cognizance of the offence under Section 3 of the PML Act, 2002 on 01.11.2016 and was pleased to issue summons to the Petitioner and others vide order dated 06.12.2016. iii. Learned Special C.J.M., Bhubaneswar convicted the Petitioner in connection with the aforesaid CBI case and awarded the sentence for 7 years imprisonment with a further direction to deposit the alleged misappropriated amount of ₹ 250 Crore. Learned Sessions Judge, dealing with ED case, was pleased to issue production warrant on 13.09.2017. In the meantime, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eing personally present in Court in view of Section 45 of the PML Act and Section 88 of the Cr.P.C has no application in any way. Hence, the learned trial court has rightly rejected the bail application of the Petitioner, as he has confessed his guilt in many other cases and is a convict serving sentence. 7. Section 45 of the PML Act departs from the rule of presumption of innocence in as much as it introduces two further pre-conditions that may be satisfied before an accused can be enlarged on bail. The pre-amendment Section 45 of the PML Act provides the following: Offences to be cognizable and non-bailable.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),- (a) Every offence punishable under this Act shall be cognizable; (b) no person accused of an offence punishable for a term of imprisonment of more than three years under Part A of the Schedule shall be released on bail or on his own bond unless- (i) the Public Prosecutor has been given an opportunity to oppose the application for such release; and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e a provision for bail anymore. By Act 13 of 2018 Section 45(1) of the PML Act was sought to be amended w.e.f 19.04.2018. Through such amendment the words punishable for a term of imprisonment of more than three years under Part A of the Schedule as occurring in Section 45(1) before the judgment of the Supreme Court in Nikesh Tarachand Shah's case (supra) were substituted with the words under this Act . As per learned counsel for the ED, after such amendment, the defect on the basis of which the Supreme Court had declared Section 45(1) of the PML Act to be unconstitutional was cured and consequently the twin conditions prescribed in Section 45(1) stood revived. 11. At this juncture, it is pertinent to peruse the post amendment Section as well which reads as: Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no person accused of an offence (under this Act) shall be released on bail or on his own bond unless: (i) the Public Prosecutor has been given an opportunity to oppose the application for such release; and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable gro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sub Section(1) of Section 45 of the PMLA Act. However, the original Section 45(1)(ii) has not been revived or resurrected by the said Amending Act. The learned counsel appearing for the applicant and the learned Additional Solicitor General of India are not disputing about the said fact situation and in fact have conceded to the same. It is further to be noted here that, even Notification dated 29.3.2018 thereby amending Section 45(1) of the PMLA Act which came into effect from 19.4.2018, is silent about its retrospective applicability. In view thereof, the contention advanced by the learned A.S.G. cannot be accepted. It is to be further noted here that, the original Sub-section 45(1)(ii) has therefore neither revived nor resurrected by the Amending Act and therefore, as of today there is no rigor of said two further conditions under original Section 45(1)(ii) of PMLA Act for releasing the accused on bail under the said Act. 10. In view of the above, when there is no bar of twin conditions contained in original Section 45(1)(ii) of the PMLA Act, the present application has to be considered and decided under Section 439 of the Code of Criminal Procedure with or without conditio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 26th February, 1979, an essential ingredient of 'reasonable, fair and just' procedure guaranteed by Article 21 and it is the constitutional obligation of the State to device such a procedure as would ensure speedy trial to the accused. The State cannot be permitted to deny the constitutional right of speedy trial to the accused on the ground that the State has no adequate financial resources to incur the necessary expenditure needed for improving the administrative and judicial apparatus with a view to ensuring speedy trial. 18 . P.N. Bhawati, J. in Hussainara Khatoon (supra) said that although the right to speedy trial is not specifically enumerated as a fundamental right, it is implicit in the broad sweep and content of Article 21 as interpreted in Maneka Gandhi v. Union of India (1978) 1 SCC 248 . It was reiterated that reasonable expeditious trial is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21. 19. The speedy trial of offences is one of the basic objectives of the criminal justice delivery system. Ample provisions have been made in the Code of Criminal Procedure and Police Act for expeditio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollowing words by the Hon ble Supreme Court: Fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a right in the accused to be tried speedily. 22. The fundamental right to speedy trial is peculiar in character and is generically different from other constitutional rights of the accused. The right is in the interest of the accused if he is innocent. He does not suffer unduly for a long period. But it also works against him if he is actually guilty of the offence. The right is also in the interest of prosecution because it does not face the problems such as non-availability of witnesses and disappearance of evidence etc. But sometimes, it also goes against the prosecution specially when the prosecution does not have hundred per cent foolproof case against known or hardened criminals. But the right strengthens the administration of justice because of the certainty of application of penal sanctions. It is this amorphous quality of right which makes the effects of its denial unpredictable. 23. The Petitioner herein was given maximum sentence of seven years in a case which was prosecuted by the CBI, after he pleaded guilty of the crime of co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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