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TMI Blog2023 (3) TMI 385X X X X Extracts X X X X X X X X Extracts X X X X ..... ights of the present applicant defined under Section 204 (3) 208 Cr.P.C. have been violated by the Investigating Agency inasmuch as he has not been provided copy of complaint, copy of statements and other relevant documents. The Apex Court in re; Aman Preet Singh [ 2021 (10) TMI 1 - SUPREME COURT ] and Satender Kumar Antil [ 2022 (8) TMI 152 - SUPREME COURT ] has categorically observed that arrest of any person is not mandatory in each and every case but before curtailing the liberty of an accused person, the relevant facts and circumstances should be visualized. In the present case, prima facie, there was no requirement to take the applicant into custody when he appeared before the learned trial court pursuant to the summons being issued inasmuch as he has never flouted the process of law, he cooperated in the investigation throughout, the Investigating Agency has never thought to arrest him under Section 19 of the PMLA despite he appeared before the E.D. to record his statement twice pursuant to the summons being issued under Section 50 of the PMLA and there was no request of the E.D. before the learned trial court to the effect that arrest of the present applicant is wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or Accounts Manager and is presently working as the business head of Jagran Solutions. As a part of his official duties, the applicant undertook business development and client servicing for Jagran Solutions. 6. The Director General, Family Welfare, U.P., published an advertisement seeking private bidders to operate MMUs in selected districts of U.P. for a period of three years. Jagran Solutions submitted a proposal for providing MMUs in all 15 districts as advertised in the Request For Proposal (for short RFP ). The financial proposal submitted by Jagran Solutions quoted a composite price (Capital Expenditure plus Recurring Expenditure) of INR 1,36,97,098/- as the cost per MMU. The financial proposals of Jagran Solutions were approved and the Firm entered into four different agreements with the Director General, Family Welfare. On the complaint of huge bungling, fraud and forgery in the issue relating to the NRHM, the matter was referred to the CBI and CBI registered preliminary enquiry on 19.11.2011 pursuant to the order being passed by the High Court in Writ Petitions No.3611 (MB) of 2011, 3301 (MB) of 2011 and 2647 (MB) of 2011, dated 15.11.2011. Pursuant to the report of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3, however, no proper service of summons was effected on the applicant and only a constructive service was effected. Learned Senior Advocate has stated that no property of the applicant or JPL has been attached by the E.D. 11. On 22.12.2022, summons have been issued against the applicant. Learned Senior Advocate has stated that the aforesaid summons issued to the applicant did not contain copy of the prosecution complaint filed by the E.D., copy of statements and relevant documents of the complaint, which is a clear cut violation of Sections 204 (3) 208 Cr.P.C. For the convenience, Sections 204 (3) 208 Cr.P.C. are being reproduced herein below:- 204. (3) In a proceeding instituted upon a complaint made in writing, every summons or warrant issued under sub- section (1) shall be accompanied by a copy of such complaint. 208. Supply of copies of statements and documents to accused in other cases triable by Court of Session. Where, in a case instituted otherwise than on a police report, it appears to the Magistrate issuing process under section 204 that the offence is triable exclusively by the Court of Session, the Magistrate shall without delay furnish to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and those conditions are not satisfied, therefore, the applicant is not entitled for bail. 14. Sri Jaideep Narain Mathur, learned Senior Advocate, has submitted that the Apex Court in re; Aman Preet Singh vs. C.B.I. Through Director, 2021 SCC OnLine SC 941 , has held that if during investigation, the accused has cooperated in the investigation and has not been arrested by the Investigating Agency, merely because charge sheet has been filed, he should not be arrested. He has referred paragraphs 10, 11 12 of the aforesaid judgment, which are as under:- 10. A reading of the aforesaid shows that it is the guiding principle for a Magistrate while exercising powers under Section 170, Cr.P.C. which had been set out. The Magistrate or the Court empowered to take cognizance or try the accused has to accept the charge sheet forthwith and proceed in accordance with the procedure laid down under Section 173, Cr.P.C. It has been rightly observed that in such a case the Magistrate or the Court is required to invariably issue a process of summons and not warrant of arrest. In case he seeks to exercise the discretion of issuing warrants of arrest, he is required to record the reason ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and keeping in mind the statutory provisions. 3. We are inclined to accept the guidelines and make them a part of the order of the Court for the benefit of the courts below. The guidelines are as under: Categories/Types of Offences (A) Offences punishable with imprisonment of 7 years or less not falling in Categories B D. (B) Offences punishable with death, imprisonment for life, or imprisonment for more than 7 years. (C) Offences punishable under Special Acts containing stringent provisions for bail like NDPS (Section 37), PMLA (Section 45), UAPA [Section 43- D(5)], Companies Act, [Section 212(6)], etc. (D) Economic offences not covered by Special Acts. REQUISITE CONDITIONS (1) Not arrested during investigation. (2) Cooperated throughout in the investigation including appearing before investigating officer whenever called. (No need to forward such an accused along with the charge-sheet (Siddharth v. State of U.P. [Siddharth v. State of U.P., (2022) 1 SCC 676 : (2022) 1 SCC (Cri) 423]) CATEGORY A After filing of charge-sheet/complaint taking of cognizance (a) Ordinary summons at the 1st instance/including per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of Mr Luthra that this Court in Sanjay Chandra v. CBI [Sanjay Chandra v. CBI, (2012) 1 SCC 40 : (2012) 1 SCC (Cri) 26 : (2012) 2 SCC (L S) 397] has observed in para 39 that in determining whether to grant bail both aspects have to be taken into account: (a) seriousness of the charge, and (b) severity of punishment. Thus, it is not as if economic offences are completely taken out of the aforesaid guidelines but do form a different nature of offences and thus the seriousness of the charge has to be taken into account but simultaneously, the severity of the punishment imposed by the statute would also be a factor. 8. We appreciate the assistance given by the learned counsel and the positive approach adopted by the learned ASG. 9. The SLP stands disposed of and the matter need not be listed further. 10. A copy of this order be circulated to the Registrars of the different High Courts to be further circulated to the trial courts so that the unnecessary bail matters do not come up to this Court. 11. This is the only purpose for which we have issued these guidelines, but they are not fettered on the powers of the courts. 16. Sri Mathur has sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that the total period of incarceration in case of conviction is only seven years and Section 45 PMLA will not be applicable as it is pre-amendment. Issue notice. In the meantime, the petitioners be not arrested but shall continue to cooperate with further investigation. 18. Sri Mathur has also referred the judgment of the High Court of Delhi in re; Rana Kapoor Vs. Directorate of Enforcement, 2022 SCC OnLine Del 4065, to submit that in more or less in similar facts and circumstances, the Delhi High Court has granted bail to the accused persons. The ratio of the judgment has been indicated in paras 33 34, which reads as under:- 33. The applicant was not implicated in FIR bearing RC No.2232021A0005 registered by CBI. The applicant was implicated in present criminal complaint filed by the respondent/ED and arrayed as accused no 2. The investigating officer consciously did not arrest the applicant. The applicant participated in investigation as his three statements under section 50 PMLA were recorded. The respondent also did not allege that the applicant neither participated nor cooperated in investigation. The concerned Special Court after taking c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ling of charge sheet. The arguments advanced and case law relied on by the Special Counsel for the respondent are considered in right perspective to the given facts and circumstances but they do not provide much legal help to the respondent in opposing present bail application. 19. Therefore, to sum up, Sri Mathur, learned Senior Advocate, has submitted that while granting the bail to the present applicant in the predicate offence, this Court has observed that the applicant has never flouted the process of law and has cooperated in the investigation properly. The direction was issued to deposit a sum of Rs.4.89 Crore, which has been deposited by the applicant in the year 2015 itself. Since then, the applicant is cooperating in the investigation being conducted by the Enforcement Directorate as he has been called twice to record his statement under Section 50 of the PMLA and the present applicant has recorded his statement. The E.D. did not arrest the applicant under Section 19 of the PMLA as the Investigating Agency did not find it appropriate to arrest the applicant during investigation as he was cooperating. After filing of the prosecution complaint, the learned trial cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2022 SCC OnLine SC 929 , which reads as under:- 398. Thus, it is well settled by the various decisions of this Court and policy of the State as also the view of international community that the offence of money-laundering is committed by an individual with a deliberate design with the motive to enhance his gains, disregarding the interests of nation and society as a whole and which by no stretch of imagination can be termed as offence of trivial nature. Thus, it is in the interest of the State that law enforcement agencies should be provided with a proportionate effective mechanism so as to deal with these types of offences as the wealth of the nation is to be safeguarded from these dreaded criminals. As discussed above, the conspiracy of money-laundering, which is a three-staged process, is hatched in secrecy and executed in darkness, thus, it becomes imperative for the State to frame such a stringent law, which not only punishes the offender proportionately, but also helps in preventing the offence and creating a deterrent effect. 399. In the case of the 2002 Act, the Parliament had no reservation to reckon the offence of money-laundering as a serious threat to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns were issued to the applicant to cooperate in the investigation and to record his statement under Section 50 of the PMLA and the applicant duly appeared before the E.D. on 23.12.2016 and 10.06.2019, therefore, Sri Tripathi has submitted that the present applicant has not been arrested under Section 19 of the PMLA. 23. On being further confronted as to why the applicant has not been provided copy of complaint and copies of statements and relevant documents to the applicant in compliance of Section 204 (3) and 208 Cr.P.C., Sri Tripathi has stated that such copies have not been demanded by the applicant or his counsel, therefore, the same were not provided. However, he has submitted that the same shall be provided to the applicant or his counsel but at this juncture, he could not dispute that the mandatory compliance of Sections 204 (3) 208 Cr.P.C. has not been made. 24. Heard learned counsel for the parties and perused the material available on record. 25. At the very outset, it would be apt to deal the rigours of Section 45 of the PMLA, which provides that before granting bail, the twin conditions have to be seen carefully. In the present case, this is an admitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ijay Madanlal Choudhary (supra) has observed as under:- 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 . 27. Notably, the statutory rights of the present applicant defined under Section 204 (3) 208 Cr.P.C. have been violated by the Investigating Agency inasmuch as he has not been provided copy of complaint, copy of statements and other relevant documents. 28. The Apex Court in re; Aman Preet Singh (supra) and Satender Kumar Antil (supra) has categorically observed that arrest of any person is not mandatory in each and every case but before curtailing the liberty of an accused person, the relevant facts and circumstances should be visualized. In the present case, prima facie, there was no requirement to take the applicant into custody when he appeared before the learned trial c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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