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TMI Blog2021 (10) TMI 1301X X X X Extracts X X X X X X X X Extracts X X X X ..... mmit any offence while on bail. If by the amendment introduced in Section 45 of the PMLA, by Act No. 13 of 2018; the entire Section 45 has been reframed in reviving and resurrecting the requirement of twin-conditions under sub-Section (1) of Section 45 of the PMLA for grant of bail. In view of clear language used in paragraph 46 of the Hon'ble Supreme Court's decision in case of NIKESH TARACHAND SHAH VERSUS UNION OF INDIA AND ANR. [ 2017 (11) TMI 1336 - SUPREME COURT] , this Court is of the considered view that the amendment in sub-Section (1) of Section 45 of the PMLA introduced after the Hon'ble Supreme Court's decision in case of Nikesh Tarachand Shah does not have the effect of reviving the twin-conditions for grant of bail, which have been declared ultra vires Articles 14 and 21 of the Constitution of India. The power under Section 438 of Cr.P.C. is an extraordinary power and the judicial discretion is this regard is 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 as also all other surrounding factors as relevant to the particu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... counsel for the Petitioner and learned counsel for the Enforcement Directorate (ED). I have gone through the averments taken in the application filed by the Petitioner as also the documents annexed thereto. The objection affidavit with the annexed documents and the additional affidavit filed by the Petitioner have also been perused. 4. On registration of Kharavelanagar P.S. Case No.44(4) of 2013, on receipt of an F.I.R. on 07.02.2013, after investigation, charge-sheet was filed on 10.07.2013. Another F.I.R. being received at the same Police Station on 27.05.2013, investigation being made, charge-sheet was also filed on 28.07.2013. When the matter stood thus, the Central Bureau of Investigation (CBI) took up investigation of these cases together with one case with similar allegation as had been registered at Sahadev Khunta Police Station and some more cases being clubbed together. Upon investigation at their level on 11.12.2014 they filed the first charge-sheet in the Court of learned Special Chief Judicial Magistrate, Bhubaneswar, placing 23 persons to stand their trial for commission of offence under Section 120- B/294/341/406/409/420/467/468/471/506/34 of the IPC read wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner has been arraigned as an accused with others in the complaints. It is pertinent to state at this place that the first complaint on the above alleged facts as to commission of the offences under Section 3 read with Section 70(1) and 70(2) of the PMLA was filed in the year, 2016 and on 01.11.2016, the Court took cognizance of the offences and issued process to those accused persons who had been so arraigned therein. 7. The Petitioner being the accused in connection with the criminal cases which ultimately were investigated by the SIT of CBI, he was charge-sheeted therein. This Petitioner being thus arrested on 24.08.2014, continued to remain in custody in that case for more than three and half years. This Court having directed for release of the Petitioner on bail in that case by its order dated 17.03.2018, the Petitioner being not able to fulfill the condition as regards the deposit of cash of ₹ 2.00 crore, he suffered further imprisonment. Then having apprehended the Hon ble Apex Court in CRLA No.1266 of 2017, when the Hon ble Apex Court on 23.02.2018 reduced the quantum of deposit to ₹ 1 crore and directed for its deposit in three instalments, the Petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imposes two conditions for grant of bail to any person accused of any offence under the Act viz., (i) that the prosecutor must be given an opportunity to oppose the application for such bail; (ii) where the move is opposed, the court must be satisfied that there are reasonable grounds for believing that the accused persons is not guilty of such offence and that he is not likely to commit any offence while on bail. 11. In Nikesh Tarachand Shah Vrs. Union of India and Others; (2018) 11 SCC, the Hon'ble Supreme Court has declared Clause (ii) of sub-Section (1) of Section 45 of PMLA ultra vires Articles 14 and 21 of the Constitution of India. The provision of section 45(1) of the PMLA as it then stood reads as under:- 45. 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 oppos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se (ii) of sub-Section (1) of Section 45 of the PMLA in present form how far the impact, despite Hon'ble Supreme Court's decision in case of Nikesh Tarachand Shah (supra) is the matter to be seen, so that on said touchstone, the factual settings of the case would stand for consideration. 14. Learned counsel for the petitioner submitted that once the provisions have been declared violative of Article 21 of the Constitution of India, the same cannot be said to have revived by introducing amendment of the nature as noted above. He submitted that the amendment introduced in 2018 in sub- Section (1) of Section 45 of the Act does not amount to reenactment of the provision to the extent it related to imposition of conditions for release on bail, which has been declared ultra vires Articles 14 and 21 of the Constitution of India. 15. Learned counsel for the E.D. placed reliance on Hon'ble Supreme Court's later decision in case of P.Chidambaram (supra), and submitted that applying the provision under Section 45(1) of the PMLA, the petition for grant of anticipatory bail was rejected in that case. Placing reliance upon the decisions in the cases of Y.S.Jagan Mohan Reddy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the purpose for the amendment in question in sub- Section (1) of Section 45 of the PMLA, has arisen in view of the Hon'ble Supreme Court's observation in case of Nikesh Tarachand Shah (supra) while dealing with various provisions of the PMLA and considering the challenge to the validity of Section 45(1) of the PMLA. 17. In Y.S.Jagan Mohan Reddy (supra), the Apex Court held:- 34. Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offences having deep-rooted conspiracies and involving huge loss of public funds need to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country. In Rohit Tandon Vrs. Directorate of Enforcement (2018) 11 SCC 46, the Hon'ble Supreme Court held:- 21. The consistent view taken by this Court is that economic offences having deep-rooted conspiracies and involving huge loss of public funds need to be viewed seriously and considered A.B. No. 42 of 2020 P a g e | 34 as grave offences affecting the economy of the country as a whole and thereby po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tarachand Shah (supra). That is in a situation, when a person being charged with an offence in Part A of the Schedule together with a predicate offence in Part B of the Schedule. The observation as at paragraph 32 is as under:- 32 .The second illustration would be of Mr. X being charged with an offence under the 2002 Act together with a predicate offence contained in Part B of the Schedule. Both these offences would be tried together. In this case, again, the Special Court/High Court can enlarge Mr. X on bail, with or without conditions, under Section 439 of the Code of Criminal Procedure, as Section 45 of the 2002 Act would not apply. 20. The third and fourth illustration as at paragraph-32 and 37 are:- In a third illustration, Mr. X can be charged under the 2002 Act together with a predicate offence contained in Part A of the Schedule in which the term for imprisonment would be 3 years or less than 3 years (this would apply only post the Amendment Act of 2012 when predicate offences of 3 years and less than 3 years contained in Part B were all lifted into Part A). In this illustration, again, Mr. X would be liable to be enlarged on bail under Section 439 of the Code ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c provision which turns on its head the presumption of innocence which is fundamental to a person accused of any offence. Before application of a section which makes drastic inroads into the fundamental right of personal liberty guaranteed by Article 21 of the Constitution of India, we must be doubly sure that such provision furthers a compelling State interest for tackling serious crime. Absent any such compelling State interest, the indiscriminate application of the provisions of Section 45 will certainly violate Article 21 of the Constitution. Provisions akin to Section 45 have only been upheld on the ground that there is a compelling State interest in tackling crimes of an extremely heinous nature. The Hon'ble Apex Court clearly held that indiscriminate application of the provision of Section 45 of the PMLA will certainly violate Article 21 of the Constitution of India. 22. In the aforesaid background, it is to be seen as to if by the amendment introduced in Section 45 of the PMLA, as noted above, by Act No. 13 of 2018; the entire Section 45 has been reframed in reviving and resurrecting the requirement of twin-conditions under sub-Section (1) of Section 45 of the PM ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow to be kept in mind that the personal liberty is important aspect of our Constitutional mandate, the occasions to arrest accused during investigation arises when custodial interrogation becomes necessary or it is a heinous crime or where there is possibility on the part of the accused to influence the witnesses and resorting to abscondance. Merely because an arrest can be made because it is lawful, does not mandate that arrest must be made. A distinction has been made between the existence of the power of arrest and the justification of exercise of it. If the Investigating Officer has no reason to believe that the accused will abscond or disobey the summons and when he has in fact throughout cooperated with the investigation, there arises no compulsion to arrest the accused. (Ref.:- Sidharth Vrs. State of Uttar Pradesh Another in Criminal Appeal No.838 of 2021 arising out of SLP (Crl.) No.5442 of 2021 decided by the Hon ble Apex Court on 16.08.2021). 27. As culled out from the submission of the learned counsel for the E.D. as also from the objection affidavits the present prayer as advanced by the Petitioner has further been resisted on the following grounds:- (i) that in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ove to suddenly go for his arrest for being incarcerated further merely because of pendency of the PMLA case against him by resisting the prayer, does not appear to be in the direction of serving any purpose of the case where the cognizance has been taken way back on 01.11.2016 and supplementary complaints being also filed the same have been accepted. At this juncture after lapse of such long period, the chance of discovery of further material facts and relevant informations at the instance of this Petitioner also stands too remote a possibility. Moreover, the stage so as to infer that further custodial interrogation at present would be qualitatively more elicitation oriented than his being questioned while under the protective umbrella is over. In view of all the aforesaid, it is directed that in the event of arrest of the Petitioner or upon his surrender before the Court in seisin of the case in connection with CMC (PMLA) Case No.34 of 2016, he shall be released on bail on the conditions that :- (i) that he shall furnish bond of ₹ 2,00,000/- (Rupees two lakh) with two solvent sureties each for the like amount; (ii) that he shall not directly or indirectly make any ..... X X X X Extracts X X X X X X X X Extracts X X X X
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