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TMI Blog2022 (11) TMI 754X X X X Extracts X X X X X X X X Extracts X X X X ..... ed counsel appearing for the petitioner. It has been reported that in Hare Street P.S. Case No. 222 of 2022, the petitioner has already been granted bail and this case has been registered on the basis of that case, which is in view of the provisions of PML Act and the offence is also coming under the scheduled offence. Considering all these aspects of the matter including the duration of custody of the petitioner in the present case, as he is in jail custody since 18.08.2022, the court comes to a conclusion that he is entitled to be granted bail - application allowed. - B.A. No. 11214 of 2022 - - - Dated:- 9-11-2022 - Hon ble Mr. Justice Sanjay Kumar Dwivedi For the Petitioner : Mr. Nilesh Kumar, Advocate., Ms Sonal Sodhani, Advocate. For the ED : Mr. Anil Kumar, A.S.G.I., Ms Chadana Kumari, A.C. to A.S.G.I. ORDER Heard Mr. Nilesh Kumar, learned counsel appearing for the petitioner and Mr. Anil Kumar, learned A.S.G.I. appearing for the ED. 2. The petitioner is seeking regular bail, in connection with ECIR Case No. 05 of 2022, which has been instituted for the offence under Section 3 read with Section 4 of Prevention of Money Laundering Act [hereinafter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e under Section 3 and punishable under Section 3 of the PML Act, 2002. Accordingly, present first information report has been instituted. 4. Mr. Nilesh Kumar, learned counsel appearing for the petitioner submits that the petitioner is an innocent person and he has been falsely implicated in this case. He submits that after going through the entire complaint, no case under the PML Act, 2002 is made out so far as this petitioner is concerned. He further submits that the petitioner is a renowned lawyer and filed several cases including the Public Interest Litigations before this Hon ble court and pointed out the illegality, irregularity and corruptions prevailed or prevailing in the society and for that he has filed one Public Interest Litigation, being W.P. (PIL) No. 4290 of 2021. He further submits that in the said PIL, the officials of the State including one Amit Kumar Agrawal are apprehending certain orders and that s why the petitioner has been trapped on the false allegation made by one Amit Kumar Agrawal. He also submits that one Sonu Agrawal has called the petitioner at Kolkata and through Sonu Agrawal, Amit Kumar Agrawal has come into the picture. He further submits that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the police and now he is jail custody in the present case. He draws the attention of the court to the application filed under Section 167 Cr.P.C. read with Section 65 and 19(3) of the PML Act, submitted by the ED before the learned Special Judge at Ranchi. By way of referring the paragraphs, he submits that the ED has also come to the conclusion that Amit Kumar Agrawal stated falsely in this complaint that Rajeev Kumar assured him that he has lot of big contacts and by that he will keep the Government agencies silent against, if he will pay the bribe. By way of referring para-7 of the said application, he submits that Amit Kumar Agrawal himself influencing and offering bribe to Rajeev Kumar, who is also keen to accept the same. By way of referring para-8, he submits that it has come that it was alleged that several companies of Amit Kumar Agrawal were alleged to launder the black money for politicians and it has come in the said paragraph that Amit Kumar Agrawal was anticipating orders from High Court in the aforementioned PIL, foreseeing further investigation into his companies and only for that the petitioner has been trapped. He submits that he read the entire application of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fa ade that he was coerced to give a bribe to the petitioner, but investigation revealed that he called him to Kolkata and voluntarily offered a bribe to him. He further submits that in so many words, it has also come that PC Act and the extortion under Section 384 IPC have not been attracted in the case in hand so far as this petitioner is concerned. He submits that the PML Act was examined recently by the Hon ble Supreme Court in the case of Vijay Madanlal Choudhary Ors. Versus Union of India Ors., reported in 2022 SCC Online SC 929. Paras-253, 281, 400 and 401 of the said judgment are quoted hereinbelow:- 253. Tersely put, it is only such property which is derived or obtained, directly or indirectly, as a result of criminal activity relating to a scheduled offence can be regarded as proceeds of crime. The authorities under the 2002 Act cannot resort to action against any person for money-laundering on an assumption that the property recovered by them must be proceeds of crime and that a scheduled offence has been committed, unless the same is registered with the jurisdictional police or pending inquiry by way of complaint before the competent forum. For, the expression ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the scheduled offence to pronounce on that matter. 400. It is important to note that the twin conditions provided under Section 45 of the 2002 Act, though restrict the right of the accused to grant of bail, but it cannot be said that the conditions provided under Section 45 impose absolute restraint on the grant of bail. The discretion vests in the Court which is not arbitrary or irrational but judicial, guided by the principles of law as provided under Section 45 of the 2002 Act. While dealing with a similar provision prescribing twin conditions in MCOCA, this Court in Ranjitsing Brahmajeetsing Sharma634 , held as under: 44. The wording of Section 21(4), in our opinion, does not lead to the conclusion that the court must arrive at a positive finding that the applicant for bail has not committed an offence under the Act. If such a construction is placed, the court intending to grant bail must arrive at a finding that the applicant has not committed such an offence. In such an event, it will be impossible for the prosecution to obtain a judgment of conviction of the applicant. Such cannot be the intention of the legislature. Section 21(4) of MCOCA, therefore, must be const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted during investigation and the said view will not be taken into consideration by the Trial Court in recording its finding of the guilt or acquittal during trial which is based on the evidence adduced during the trial. As explained by this Court in Nimmagadda Prasad636 , the words used in Section 45 of the 2002 Act are reasonable grounds for believing which means the Court has to see only if there is a genuine case against the accused and the prosecution is not required to prove the charge beyond reasonable doubt. 7. Learned counsel appearing for the petitioner submits that rigor of Section 45 of the PML Act is not attracted, so far as this petitioner is concerned and it is the discretion of the court to decide that the rigor has been made or not, in the light of Section 45(ii) of the PML Act. He submits that in the economic offence cases, the Hon ble Supreme Court has interfered with the matter and granted bail to the accused persons. He relied in the case of P. Chidambaram Versus Directorate of Enforcement, reported in (2020) 13 SCC 791. He further submits that the case of Ranjitsing Brahmajeetsing Sharma Versus State of Maharashtra Anr., reported in (2005) 5 SCC 294 wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lakhs from Amit Kumar Agrawal, with intention to compromise the PIL in question. He refers to para-269 of the judgment rendered in Vijay Madanlal Choudhary Ors. (Supra) and submits that it has been held that process or activity in any form is one of the concealment, possession, acquisition, use of proceeds of crime as much as projecting it as untainted property or claiming to be so. Relying on this paragraph, he submits that even assuming for the time being that Section 7 of the Prevention of Corruption Act is not attracted, Section 384 IPC is also there and the same is also a scheduled offence, prescribed under the PML Act. He further submits that however, these are the subject matter of trial and the petitioner does not deserve the regular bail. 10. In view of the above facts and submissions of the parties, the court has gone through the materials available on record and finds that ECIR Case No. 5 of 2022 was registered against the petitioner, as in view of the fact that he was trapped in Hare Street P.S. Case No. 222 of 2022 on 13.07.20222 with the allegation that he has received an amount of Rs. 50 lakhs by one Amit Kumar Agrawal for managing the PIL. Thereafter, the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eet and the same was also placed by the learned counsel appearing for the petitioner, who is arguing on behalf of the petitioner for seeking regular bail for the petitioner. In the chargesheet, it has come that Amit Kumar Agrawal has hatched the conspiracy and contacted Rajeev Kumar with the help of Sonu Agrawal to come to Kolkata. In para-6.1 of the said chargesheet, it has come that Sonu Agrawal has stated that his friend Amit Kumar Agrawal is in a problem in the matter of PIL, filed before the High Court with respect to corruption matter, who is linking with the Chief Minister of Jharkhand and he wanted to meet the petitioner. The petitioner-Rajeev Kumar has disclosed, which has come in the chargesheet that the police has continuously pressurizing him to say that he extorts money from the government officials. He was also pressurized to accept that he was extraneous connections with the ED officials. Thus, it appears that allegation has been against the ED officials to malign the reputation by one Amit Kumar Agrawal. What has been discussed above, with regard to the report under Section 167 Cr.P.C. as well as Section 65 and 19(3) of PML Act that has been more elaborately incorpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is in judicial custody. 12. The rigor of Section 45 of the PML Act has not res integra, as has been held by the Hon ble Supreme Court in the case of Gautam Kundu v. Directorate of Enforcement, reported in (2015) 16 SCC 1, wherein the Hon‟ble Supreme Court has occasioned to examine paragraph Nos.28 to 30, which reads as under:- 28. Before dealing with the application for bail on merit, it is to be considered whether the provisions of Section 45 of PMLA are binding on the High Court while considering the application for bail under Section 439 of the Code of Criminal Procedure. There is no doubt that PMLA deals with the offence of money-laundering and Parliament has enacted this law as per commitment of the country to the United Nations General Assembly. PMLA is a special statute enacted by Parliament for dealing with money-laundering. Section 5 of the Code of Criminal Procedure, 1973 clearly lays down that the provisions of the Code of Criminal Procedure will not affect any special statute or any local law. In other words, the provisions of any special statute will prevail over the general provisions of the Code of Criminal Procedure in case of any conflict. 29. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pra), the bail aspect has been considered in para-22 and 23 of the said judgment, which is quoted hereinbelow:- 22. The learned senior counsel for the appellant has also placed reliance on the decision on the decision in the case of Sanjay Chandra vs. CBI, (2012) 1 SCC 40 with specific reference to paragraph 39 which reads as hereunder: Coming back to the facts of the present case, both the courts have refused the request for grant of bail on two grounds: the primary ground is that the offence alleged against the accused persons is very serious involving deep-rooted planning in which, huge financial loss is caused to the State exchequer; the secondary ground is that of the possibility of the accused persons tampering with the witnesses. In the present case, the charge is that of cheating and dishonestly inducing delivery of property and forgery for the purpose of cheating using as genuine a forged document. The punishment for the offence is imprisonment for a term which may extend to seven years. It is, no doubt, true that the nature of the charge may be relevant, but at the same time, the punishment to which the party may be liable, if convicted, also bears upon the is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ture and gravity of charge, the precedent of another case alone will not be the basis for either grant or refusal of bail though it may have a bearing on principle. But ultimately the consideration will have to be on case to case basis on the facts involved therein and securing the presence of the accused to stand trial. 14. The petitioner is a practicing advocate, in that circumstance, the liability of the petitioner for further investigation, interrogation and facing trial is not jeopardized and he is already held to be not at flight risk and there is no possibility of tampering the evidence or influencing / intimidating the witnesses, as has been submitted by the Mr. Nilesh Kumar, learned counsel appearing for the petitioner. It has been reported that in Hare Street P.S. Case No. 222 of 2022, the petitioner has already been granted bail and this case has been registered on the basis of that case, which is in view of the provisions of PML Act and the offence is also coming under the scheduled offence. 15. Considering all these aspects of the matter including the duration of custody of the petitioner in the present case, as he is in jail custody since 18.08.2022, the cou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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