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TMI Blog2023 (2) TMI 1045X X X X Extracts X X X X X X X X Extracts X X X X ..... THE ASST. DIRECTOR ENFORCEMENT DIRECTORATE VERSUS DR. V.C. MOHAN [ 2022 (1) TMI 511 - SUPREME COURT] , this Court has specifically observed and held that it is the wrong understanding that in the case of Nikesh Tarachand Shah this Court has held that the rigour of Section 45 of the Act, 2002 shall not be applicable to the application under Section 438 Cr. PC. In the case of Dr. V.C. Mohan in which the decision of this Court in the case of Nikesh Tarachand Shah was pressed into service, it is specifically observed by this Court that it is one thing to say that Section 45 of the Act, 2002 to offences under the ordinary law would not get attracted but once the prayer for anticipatory bail is made in connection with offence under the Act, 2002, the underlying principles and rigours of Section 45 of the Act, must get triggered although the application is under Section 438 Cr.PC. - the observations made by the High Court that the provisions of Section 45 of the Act, 2002 shall not be applicable in connection with an application under Section 438 Cr.PC is just contrary to the decision in the case of Dr. V.C. Mohan and the same is on misunderstanding of the observations made in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in the said scam. M/s Max Mantena Micro JV, Hyderabad was one among them. 2.1 As per the FIR, the Government of Madhya Pradesh eProcurement Portal was being run by MPSEDC. M/s Antares Systems Limited, Bangalore and M/s Tata Consultancy Services (TCS) were given the contract for the period of 5 years for the maintenance operation of the said portal. Some of the officials of MPSEDC in collusion with the companies entrusted with maintenance and testing of the portals namely M/s Osmo IT Solutions and M/s Antares Systems Ltd, illegally accessed the eTender portal and rigged the bidding process to suit a few private bidders for huge amounts of bribe considerations. 2.2 As per the investigating agency, the preliminary investigation by the Police established that various etenders were illegally accessed and bids of a few companies were manipulated to illegally make the bids of those concerns as the lowest one. 2.3 Apart from tenders mentioned in the first preliminary charge sheet filed by the EOW Bhopal namely No. 91, 93, 94 (Water Resource Dept); 2 tenders vide Nos. 49985 49982 of PWD; Tender no 49813, Tender No. 786 of MPRDC; and Tenders vide Nos. 10030 10044, it was su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 Cr.PC. Without considering the rigour/bar under Section 45 of the Act, 2002 and observing that as per the decision of this Court in the case of Nikesh Tarachand Shah Vs. Unoin of India and Anr.; (2018) 11 SCC 1, the provisions of Section 45 of the Act, 2002 do not apply to Section 438 Cr.PC proceedings, the High Court has allowed the anticipatory bail application and has directed that in case of his arrest in connection with ED case he be released on bail. 2.8 Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court granting anticipatory bail to respondent No. 1 in ED case, the Directorate of Enforcement (ED) has preferred the present appeal. 3. Shri K. M. Nataraj, learned ASG, appearing on behalf of the ED appellant has vehemently submitted that in the facts and circumstances of the case, the High Court has committed a very serious error in allowing the anticipatory bail application and granting anticipatory bail to respondent No. 1 in connection with ED case under the Act, 2002. 3.1 It is submitted that as such the High Court has materially erred in observing that the provisions of Section 45 of the Act, 2002 shall not be appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly evasive and noncooperative and therefore, his custodial interrogation is required. 3.5 It is further submitted by learned ASG that during the investigation the ED has found that respondent No. 1 had availed and enjoyed free trips in last one year alone on the luxury plane of Mantena on multiple occasions. It is submitted that during investigation it has been found that respondent No. 1 had also availed other patronages from Srinivas Raju Mantena like sponsoring foreign exchange through Hawala Channels for his son. 3.6 It is submitted that while granting anticipatory bail to respondent No. 1 the High Court has not considered the nature of allegations and seriousness of offences alleged against respondent No. 1 who at the relevant time was working as an Additional Chief Secretary. 3.7 Making the above submissions and relying upon above decision as well as the decision of this Court in the case of P. Chidambaram Vs. Directorate of Enforcement; (2019) 9 SCC 24 as well as the decision in the case of Y.S. Jagan Mohan Reddy Vs. CBI; (2013) 7 SCC 439, it is prayed to allow the present appeal and quash and set aside the impugned judgment and order passed by the High Court. 4. Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der passed by the High Court granting anticipatory bail may not be interfered with by this Court. 5. We have heard learned counsel appearing on behalf of the respective parties at length. At the outset, it is required to be noted that respondent No. 1 is apprehending his arrest in connection with the complaint/case by the ED for the offence of money laundering under Section 3 of the Prevention of Money Laundering Act, 2002 and punishable under Section 4 of the said Act. An enquiry/investigation is going on against respondent No. 1 for the scheduled offence in connection with FIR No. 12/2019. Once the enquiry/investigation against respondent No. 1 is going on for the offence under the Act, 2002, the rigour of Section 45 of the Act, 2002 would be attracted. Section 45 of the Act, 2002 reads as under: 45. Offences to be cognizable and nonbailable. (1) [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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 45 of the Act, 2002 to offences under the ordinary law would not get attracted but once the prayer for anticipatory bail is made in connection with offence under the Act, 2002, the underlying principles and rigours of Section 45 of the Act, must get triggered although the application is under Section 438 Cr.PC. Therefore, the observations made by the High Court that the provisions of Section 45 of the Act, 2002 shall not be applicable in connection with an application under Section 438 Cr.PC is just contrary to the decision in the case of Dr. V.C. Mohan (supra) and the same is on misunderstanding of the observations made in the case of Nikesh Tarachand Shah (supra). Once the rigour under Section 45 of the Act, 2002 shall be applicable the impugned judgment and order passed by the High Court granting anticipatory bail to respondent No. 1 is unsustainable. 6. Even otherwise on merits also, the impugned judgment and order passed by the High Court granting anticipatory bail to respondent No. 1 is erroneous and unsustainable. While granting the anticipatory bail to respondent No. 1 the High Court has not at all considered the nature of allegations and seriousness of the offences a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es alleged against respondent No. 1. As per the catena of decision of this Court, more particularly, observed in the case of P. Chidambaram (supra) in case of economic offences, which are having an impact on the society, the Court must be very slow in exercising the discretion under Section 438 of Cr.PC. 7. Considering the overall facts and circumstances of the case and the reasoning given by the High Court and as observed hereinabove, the rigour of Section 45 of the Act, 2002 shall be applicable even with respect to the application under Section 438 Cr.PC and therefore, the impugned judgment and order passed by the High Court granting anticipatory bail to respondent No. 1 herein in connection with F. No. ECIR/HYZO/36/2020 dated 15.12.2020 is unsustainable. Consequently, the impugned judgment and order passed by the High Court granting anticipatory bail to respondent No. 1 is hereby quashed and set aside. Respondent No. 1 be dealt with in accordance with law. However, it is observed and made clear that after respondent No. 1 is arrested, if he files any regular bail application, the same be considered in accordance with law and on its own merits and considering the material coll ..... X X X X Extracts X X X X X X X X Extracts X X X X
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