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TMI Blog2023 (4) TMI 151X X X X Extracts X X X X X X X X Extracts X X X X ..... Sri Shiv P. Shukla, learned counsel for the Union of India and Sri Kuldeep Srivastava, learned counsel for the Enforcement Directorate. By means of this application filed u/s 482 Cr.P.C. the learned counsel for the applicant has assailed the order dated 16.1.2023 passed by the Special Court, PMLA / Sessions Judge, Lucknow rejecting the bail application of the applicant on two grounds, firstly the said bail application has been filed after expiry of the interim protection being granted by the Hon'ble Apex Court; secondly on the ground that since the applicant has not appeared before the Court rather she was absent, therefore, such application is rejected. Learned Senior Advocate has drawn attention of this Court towards Annexure no. 3 which is an order dated 7.9.2018 passed by the Apex Court in CRLMP No. 126050 of 2010 in Writ Petition (Criminal) No. 177 of 2018 (Kusum Lata vs. Union of India & Ors.), which reads as under : "SPECIAL LEAVE PETITION (CRL.) NO. 3926 OF 2018 Learned Advocate appearing on behalf of the petitioner states that a Writ Petition has been filed in this Court challenging the vires of Rule 18(3) of the Allahabad High C Court Rules, 1952. According ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stody in pursuance of the judgment of the Apex Court in the case of Sandeep Kumar Bafna vs. State of Maharashtra and another reported in (2014) 16 SCC 623. He submits that earlier when co-accused persons, who are daughter and son of the applicant and co-accused Yadav Singh had approached this Court their bail application was rejected by this Court observing that unless the accused are in judicial custody, their bail cannot be granted. The said accused approached the Apex Court by filing Special Leave to Appeal (Crl.) Nos. 3455-3456 of 2018 in which the Apex Court has passed an order on 19.4.2018 which was modified on 1.5.2018. The order dated 19.4.2018 passed by the Apex Court is quoted hereinbelow:- "Upon hearing the counsel the Court made the following order. The High Court has dismissed the bail application preferred by the petitioners on the ground that the petitioners have not been taken into custody and in the absence thereof, the application under section 439 Cr.P.C. would not be maintainable. Because of the aforesaid reason, the High Court has not gone into the merits of the application for bail submitted by the petitioners. Learned counsel for the petitioners has dra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion it is apparent that only medical ground has been taken for being considered for grant of bail to the applicant and there appears to be no averment made with respect to the merits of the case to which learned counsel for the applicant expressed his wishes to file a supplementary affidavit. So far as ailment of the applicant is concerned, when query was made regarding the same as has been argued by learned counsel for the applicant from learned counsel appearing on behalf of Union of India he showed his inability about knowledge of the same. Learned counsel for the applicant is granted four days' time to file supplementary affidavit and serve a copy of the same to learned counsel for the Union of India forthwith, who shall file a detailed counter affidavit by the next date fixed to the present bail application as well as to the supplementary affidavit to be filed by the learned counsel for the applicant. Let the matter be listed on 19th November, 2018. Taking into account that the applicant is an old lady and is suffering from various old age disease, we grant her interim bail at this stage with a direction that she shall remain present before this Court on the next d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner till the next date of listing. Further, vide order dated 7.12.2020 the Apex Court has passed the following order : "In these matters, the petitioner was granted interim protection on 10.01.2019 and the matters have remained pending since then. on 03.09.2821, the learned senior counsel for t sought time to file additional affidavit. The time prayed for was and the matters were posted on 20.09,2021. on 20.09.2021, the matters were adjourned on the letter circulated by the learned counsel for the petitioner seeking adjournment due to personal difficulty of the instructing counsel Thereafter, the matters have appeared on the Board today. Today again, a letter is circulated seeking adjournment on the same ground of "personal difficulty" of the instructing counsel. Taking note of the subject-matter. the past proceedings, and the observations occurring in the impugned order, we have declined the prayer for adjournment. After having heard learned counsel for the petitioner and having perused the material placed on record, we are unable to find any infirmity in the impugned order dated 18.12.2018, whereby the High Court declined the prayer of pre-arrest bail of the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. Learned trial court by means of order dated 16.1.2023 rejected the bail application of the present applicant. Learned Senior Advocate has stated that there is no dispute that such application was filed before the learned trial court within time stipulated by the Apex Court but on account of serious illness she could not appear before the learned trial court in person and she was under bonafide impression that when the Hon'ble Apex Court has modified its earlier order making clear that in place of surrender she may appear before the learned trial court so she could have appeared through counsel. In para 19 of the application the ailment of the present applicant has been indicated enclosing therewith the relevant medical documents. For the convenience para 19 of the writ petition is being reproduced herein below : "19. That Ld. Judge did not consider the fact applicant participated in the investigation throughout and was never arrested. She is house wife, aged about 39 years suffering from multiple life threatening disease as her one infected kidney was removed in the year 2012 by surgery and she is having history of Arthritis, hyper tension, acute vertigo, acute urinary t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... court inasmuch as if the applicant does not appear before the learned trial court in the present case, her bail application could have not been decided by the learned trial court. Her presence at the time of hearing and disposal of the bail application was required under the law, therefore, I do not find any infirmity, illegality or perversity in the impugned order dated 16.1.2023. However, considering the ailments of the present applicant which has been indicated in para 19 of the application and such critical physical condition has been considered by this Court in earlier occasion and by the Apex Court, therefore, liberty is given to the present applicant to appear before the learned trial court within one week from today. To be more precise on or before 1.2.2023 and file her bail application. The said bail application shall be heard and disposed of expeditiously preferably on the same date, if possible. It is further provided that the learned counsel for the applicant shall supply the advance copy of the bail application to the learned counsel for the opposite parties by 30.1.2023, so that the learned counsel for the opposite parties may seek instructions and may file objec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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