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TMI Blog2023 (6) TMI 503X X X X Extracts X X X X X X X X Extracts X X X X ..... is the rule, as has also been observed in spirit in the landmark judgment passed by the Hon ble Supreme Court in SUSHILA AGGARWAL AND OTHERS VERSUS STATE (NCT OF DELHI) AND ANOTHER [ 2020 (1) TMI 1193 - SUPREME COURT ] that arrest should be done in the rarest of the rare case. Even if the authorities are not satisfied then jail is the last weapon in the hand of the Authorities. In the matter at hand, it has been stated that three times the Applicant and the M3M Group were summoned and on all the occasions the representative on their behalf appeared and cooperated in the investigation. Further, the respondent has already seized numerous assets, including cars, cash, jewelry, etc. and also issued letters to bankers of M3M and its Group Companies directing that various bank accounts of the Company and its group concerns be marked as 'debit freeze' accounts. Moreover, the Applicant has yet not been implicated in any Scheduled Offences as provided under the PMLA and in fact, the ECIR does not even find mention of the name of the Applicant or any of the M3M Companies. It has also been submitted that the when summoned by the respondent, one of the representatives on be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legations against the Applicant, his family members, the M3M Group or any of its entity in the said FIRs. 3. While investigation into the said FIRs against the IREO Group of Companies, the Respondent/ED came to register the ECIR No. F.No. GNZO/10/2021 on 15th June 2021. In this ECIR as well, the applicant or the M3M Group of Companies were not arrayed as accused and no allegations were levelled against them. 4. Thereafter, on 14th January 2022, the Respondent filed a Prosecution Complaint bearing registration No. 01/2022 titled Asst. Director, Directorate of Enforcement vs. Lalit Goyal Ors against 7 accused under Section 200 of the CrPC and Section 44 and 45 of the PMLA for offences under Section 3 read with Section 70 punishable under Section 4 of PMLA and subsequently, the number of FIRs also raised from 13 to 30. 5. On 21st January 2022, the learned Special Judge (PMLA), Panchkula, Haryana took cognizance of the Prosecution Complaint filed by the respondent. 6. On 12th May 2023, the Respondent issued summons no. PMLA/SUMMON/GNZO/2023/439 to the M3M India Pvt. Ltd. calling upon it to appear to provide information and documents pertaining to transactions of M3M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is submitted that the parallel has been drawn from the writ jurisdiction which is concurrent under Article 32 of the Constitution of India to approach the Hon ble Supreme Court and under Article 226 of the Constitution of India to approach High Court. The petitioner can approach the Court under Article 32 of the Constitution of India directly to Hon ble Supreme Court or to High Court under Article 226 of the Constitution of India. There is no such impediment for the petitioner to approach the Supreme Court directly under Article 226 of the Constitution of India. 14. It is contended that the ECIR was lodged in the year 2021 and after a gap of almost 2 years, the respondent has commenced a relentless hunt to falsely implicate the Applicant and his family members. 15. The Applicant duly responded to the summons by submitting his response dated 29th May 2023 and duly participated in the investigation Despite all information having been provided, on 01st June 2023, the Respondent along with other officials carried out illegal raids on the following addresses belonging to the M3M and its group companies: a. Registered office at M3M IFC, Tower A, Sector 66, Gurugram. b. CRM ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh an authorized representative. It is submitted that the Applicant has not been arrayed as an Accused in the proceedings pertaining to predicate offences nor has been arrayed as an Accused in the prosecution complaint regarding scheduled offences made by the Respondent and hence, any proceedings under the PMLA are wholly illegal, unlawful and non-est in the eyes of law. Without any link to the scheduled or predicate offences, no proceedings under the PMLA lie against the Applicant herein and in fact, the PMLA cannot be invoked to curtail or otherwise restrict the liberty of the Applicant herein. 21. In utter haste and to mount pressure, the Respondent issued fresh summons dated 6th June 2023 to the Applicant seeking his personal appearance at its Delhi office on 7th June 2023 at 11:00 AM and specifically striking off the ability to send an authorized representative. It is submitted that the Applicant is already terrorized and agonized by the arbitrary conduct of the Respondent as around 20 officials of Respondents had arrived at the residence of the Applicant to serve the summons. 22. It is submitted that on 7th June 2023, the Applicant received summons from the Respondent f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter of IREO Group has already been granted regular bail in the matter on 24th April 2022 and the same has not been challenged by the respondent. 28. It is submitted that the Applicant apprehends that whilst offering cooperation to the Respondent, he will be arrested in the same illegal and unlawful manner as his brother was arrested and hence the Applicant is constrained to approach this Court, by way of the present Application filed under Section 438 read with Section 482 of Cr.P.C. apprehending arrest. (On behalf of the Respondent) 29. Per Contra, Mr Zoheb Hossain, appearing on behalf of the respondent vehemently opposed the instant bail application and contended that the Applicant should have approached the Court of Sessions first for the purpose of Anticipatory Bail. 30. Learned Counsel for the respondent relying on the judgment of Harendra Singh v. State of Uttar Pradesh, 2019 SCC OnLine All 4571 para 21, which was subsequently relied on by the Larger Bench of Allahabad High Court in Ankit Bharti and Ors. v. State of U.P, MANU/ UP/0498/2020 to contend that the bail application filed under Section 438 of the Cr.P.C. is not maintainable before the High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts were diverted for the development rights of a land which could not be developed for commercial purposes and it was never intended to be developed as IREO did not apply for any licenses, no designs were prepared, no employees were hired for the project. 35. It is further contended that huge amounts were diverted to M3M group companies after layering of funds. The diversion of fund took place in 17 companies, 10 of which M3M during investigation accepted to be its own / related entities while denied / did not mention for the other 07 companies. During investigation the remaining 07 companies were also proven to be M3M group companies. 36. It is submitted that during investigation, it was inter-alia revealed that all the companies through which funds were routed by IREO group to M3M group are shell companies owned / controlled / managed by M3M group and its controllers only. 37. It is submitted that upon further investigation, survey proceedings under Section 16 of PMLA, 2002 were also carried out at the business premises of the 09 shell entities wherein it was revealed that these entities are shell companies without any business and their offices are in a single narrow ro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... / provide incorrect facts to this office and tried to mislead the investigation. It is submitted that there is a key involvement in Money Laundering with Mr. Lalit Goyal of IREO group as upto date no project has ever been started or completed as per the agreement for transfer of development rights and there was never an intention-to develop the land but whole transaction done merely to divert huge investors/customers funds from IREO Group to M3M Group by layering through shell companies which itself were controlled / owned / managed by M3M group. 42. It is submitted that Mr. Basant Bansal and Mr. Roop Kumar Bansal founded M/s M3M India Limited in Gurgaon in 2010 which was admitted by Mr. Roop Kumar Bansal in his statement dated 23 rd December 2021. It is further submitted that the records of the said entity for FY 2010-11 shows Mr. Basant Bansal as Managing Director and Mr. Roop Kumar Bansal as Director along with other family members also as Directors who were indulged in the diversion of the funds from the IREO group. 43. It is submitted that for verification of the above facts and findings, the key managerial persons of the M3M group, including Basant Bansal, Roop Kumar B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... about 60 years and is a permanent resident of Hyderabad, Further, major part of the investigation has been completed with respect to the incriminating documents and digital devices, which have already been seized. Hence, there may not be a chance of tampering with the investigation at this stage, because as rightly pointed out by the learned Senior Counsel for the petitioner that a criminal case has already been filed against the other accused and the same is pending before the Special Court at Bhopal. 6.3 From the aforesaid, it can be seen that the High Court has not at all considered the nature of allegations and the seriousness of the offences 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 applicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the underlying principles and rigors of Section 45 of the 2002 must come into play and without exception ought to be reckoned to uphold the objectives of the 2002 Act, which is a special legislation providing for stringent regulatory measures for combating the menace of money-laundering. 413. There is, however, an exception carved out to the strict compliance of the twin conditions in the form of Section 436A of the 1973 Code, which has come into being on 23.6.2006 vide Act 25 of 2005. This, being the subsequent law enacted by the Parliament, must prevail. 48. Therefore, it is submitted that the Applicant is not entitled for any interim protection. ANALYSIS AND CONCLUSION 49. It has been contended by the respondent that there the Applicant should have approached the Court of Sessions first for the Bail Application. 50. Before delving into the analysis, the relevant portion of Section 438(1) of CrPC has been reproduced below to enunciate the scope of jurisdiction of this Court for entertaining the Anticipatory Bail: 438. Direction for grant of bail to person apprehending arrest. (1) When any person has reason to believe that he may be arrested on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... racted against the Applicant herein in the given fact and circumstances. Moreover, the test is not in itself absolute in cases of anticipatory bail, in light of the judgment of this Court in Vijay Agrawal (Supra). In the said case, it was held as under: 30. The jurisprudence of the bail positively lays down that a liberty of a person should not ordinarily been interfered with unless there exist cogent grounds. Despite, the twin conditions, it is not necessary that at the stage of bail, the Court has to come to the conclusion that the Applicant is not guilty for such an offence. The Court is at the stage of has to examine the case on the scale of broad probabilities. The Court at this stage is required to record an objective finding on the basis of material available on record and no other purpose. 33. It is an admitted case that the Applicant was not an accused in the predicate offence. The Applicant s name also did not appear in the ECIR and in the first complaint filed by the E.D the name or role of the accused was not mentioned. It may again be reiterated even at the cost of the brevity that even as per the Vijay Madanlal Choudhary (Supra) though, the twin conditions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erty one who has been arrested, upon receipt of security to ensure the release prisoner's latter appearance in Court for further proceedings. 32. In Nagendra v. King Emperor, AIR 1924 Cal 476, it is held that the object of the bail is to secure the attendance of the accused at the time of the trial and that the proper test to be applied for the solution of the question whether bail should be granted or not is whether it is probable that the party will appear to take his trial. 33. Thus, it is clear that the object of the bail is to secure the attendance of the accused at the trial. The accused person who enjoys freedom is in a much better position to look after his case and to properly defend himself in, the trial than if he is in custody. In other words, as the Apex court holds, a presumed innocent person must have his freedom in the form of bail to enable him to establish his innocence at the trial. 34. In Savitri Agarwal v. State of Maharashtra, (2009) 8 SCC 325 , the Hon'ble Supreme Court has held that while exercising the power under sub-section 1 of Section 438 Cr.P.C., the Court must be satisfied that the applicant invoking the provision has reason ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation and does not commensurate with his innonce. Reasonable belief is not colourable belief. 37. Section 438(1) Cr.P.C. provides that when any person has reason to believe that he may be arrested, he may approach the High Court or Sessions Court. It does not refer to a particular time or stage to have such an apprehension of arrest. However, the words and the language under Section 438(1) and (3) are so clear, so as to lead to the conclusion that whenever any person apprehends that he may be arrested for a non-bailable offence, he may seek for anticipatory bail, irrespective of the stages. 41. The grounds on which apprehension of arrest is based must be capable of being examined by the Court objectively. Then alone the Court can determine whether the applicant has reason to believe that he would be arrested. Therefore, Section 438 Cr.P.C. cannot be invoked, unless there is some material on the basis of which the Court can come to the conclusion that the apprehension of the petitioner for the arrest is genuine. 42. In the case of Gurbaksh Singh Sibbia (supra), the Hon'ble Supreme Court went to the extent of observing that in some circumstances even without regist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to look into provisions of Sections 437(5) and 439(2) CrPC. Sub-section (5) of Section 437 CrPC uses expression if it considers it necessary so to do, direct that such person be arrested and commit him to custody . Similarly, sub-section (2) of Section 439 CrPC provides: may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody . A plain reading of the aforesaid provisions indicates that provision does not mandatorily provide that the court before directing arrest of such accused who has already been granted bail must necessarily cancel his earlier bail. A discretion has been given to the court to pass such orders to direct for such person be arrested and commit him to the custody which direction may be with an order for cancellation of earlier bail or permission to arrest such accused due to addition of graver and non-bailable offences. The two-Judge Bench judgment in Mithabhai Pashabhai Patel [Mithabhai Pashabhai Patel v. State of Gujarat, (2009) 6 SCC 332 : (2009) 2 SCC (Cri) 1047] uses the word ordinarily in para 18 of the judgment which cannot be read as that mandatorily bail earlier granted to the accused has to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s taken into custody the appellant after addition of new offences rather the accused was produced in the court in pursuance of production warrant obtained from the court by the investigating agency. We, thus do not find any error in the procedure which was adopted by the Special Judge, NIA Court with regard to production of the appellant before the Court. In the facts of the present case, it was not necessary for the Special Judge to pass an order cancelling the bail dated 10-3-2016 [Pradeep Ram v. State of Jharkhand, 2016 SCC OnLine Jhar 3254] granted to the appellant before permitting the appellant-accused to be produced before it or remanding him to the judicial custody. 31. In view of the foregoing discussions, we arrive at the following conclusions in respect of a circumstance where after grant of bail to an accused, further cognizable and non-bailable offences are added 31.1. The accused can surrender and apply for bail for newly added cognizable and non-bailable offences. In event of refusal of bail, the accused can certainly be arrested. 31.2. The investigating agency can seek order from the court under Sections 437(5) or 439(2) CrPC for arrest of the accu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terms of time, or upon filing of FIR, or recording of statement of any witness, by the police, during investigation or inquiry, etc. While weighing and considering an application (for grant of anticipatory bail) the court has to consider the nature of the offence, the role of the person, the likelihood of his influencing the course of investigation, or tampering with evidence (including intimidating witnesses), likelihood of fleeing justice (such as leaving the country), etc. The courts would be justified and ought to impose conditions spelt out in Section 437(3) CrPC [by virtue of Section 438(2)]. The necessity to impose other restrictive conditions, would have to be weighed on a case-by-case basis, and depending upon the materials produced by the State or the investigating agency. Such special or other restrictive conditions may be imposed if the case or cases warrant, but should not be imposed in a routine manner, in all cases. Likewise, conditions which limit the grant of anticipatory bail may be granted, if they are required in the facts of any case or cases; however, such limiting conditions may not be invariably imposed. 85.4. Courts ought to be generally guided by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oncerned, which granted anticipatory bail, in the first instance, for a direction under Section 439(2) to arrest the accused, in the event of violation of any term, such as absconding, non-cooperating during investigation, evasion, intimidation or inducement to witnesses with a view to influence outcome of the investigation or trial, etc. The court, in this context, is the court which grants anticipatory bail, in the first instance, according to prevailing authorities. 85.8. It is open to the police or the investigating agency to move the court concerned, which granted anticipatory bail, in the first instance, for a direction under Section 439(2) to arrest the accused, in the event of violation of any term, such as absconding, non-cooperating during investigation, evasion, intimidation or inducement to witnesses with a view to influence outcome of the investigation or trial, etc. The court, in this context, is the court which grants anticipatory bail, in the first instance, according to prevailing authorities. 85.9. The correctness of an order granting bail, can be considered by the appellate or superior court at the behest of the State or investigating agency, and set as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as also been submitted that the when summoned by the respondent, one of the representatives on behalf of the Applicant or the M3M Group has always appeared before the respondent for inquiry and investigation. 59. Furthermore, the primary accused in the matter, Lalit Goel, the promoter of IREO Group, has already been granted regular bail in the matter on 24th April 2022 and the same has not been challenged by the respondent. Besides this, the learned counsel for the Respondent has sought one weeks time to file Status Report and the relevant document to support his case. 60. Therefore, in the above facts and circumstances, the totality of the matter, the fact that the Applicant has not been named in the ECIR and that the respondent has not yet been able to implicate the Applicant in any of the Scheduled Offences under the PMLA, in the interest of justice as well as considering the mandate of Article 21 of the Constitution of India, this Court is of the considered opinion that the Applicant may be granted interim protection till the next date of hearing. 61. Accordingly, in the event of any arrest of the Applicant, he shall be released on bail on his furnishing a personal bo ..... 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