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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 ..... vention of Money Laundering Act, 2002 (hereinafter referred to as "PMLA"). FACTUAL MATRIX 2. The background of the matter is that between the period of years 2018-2020, 13 FIRs were registered by certain allottees of two separate residential projects, 'Skyon' and Floors, plots and Villas, undertaken by the IREO Group, i.e., M/s IREO Pvt. Ltd. and M/s IREO FiveRiver Pvt. Ltd., respectively, on the ground of delay in handing over/delivery of possession of apartments/ commercial units. There were no specific allegations 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e apprehension that the respondent will arrest him as well in relation to the above said cases. SUBMISSIONS (On behalf of the Applicant) 13. Dr. Abhishek Manu Singhvi, learned Senior Counsel appearing on behalf of the Applicant contended that under Section 438 of the Cr.P.C. that there is a concurrent jurisdiction casted upon the Court of Session and High Court. The Concurrent jurisdiction does not bar the applicant from approaching High Court first. It 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore the Respondent on 6th June 2023 at its office in New Delhi in compliance with the summons issued to the Applicant dated 4th June 2023, directing to appear, 'in person or through its authorized representative'. However, the Respondent took strong exception to the fact that the Applicant was represented by an authorized representative and had not appeared personally, despite the summons clearly permitting appearance through 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Constitution. Therefore, anticipatory bail is a statutory right in consonance with the Right to life and personal liberty under Article 21 of the Constitution of India. Hence, if the Applicant is arrested, it shall be in direct violation of his fundamental right under Article 21 of Constitution of India. 27. The learned senior counsel submitted that 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. 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. 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amely M/s Mews Conbuild Pvt. Ltd. It is further submitted that during investigation no agreement was submitted / identified, but money trail shows the receipt of such amount on 30th March 2011 and 31st March 2011. This enormous fund was later on transferred to M/s Grand Realcon Pvt. Ltd. on 06th April 2011. 34. It is submitted that in the similar way huge amounts 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 / contro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... related company of the M3M group. 41. It is submitted that the ownership / control / linkage of the M3M group over the above 07 entities had been denied by M3M Group in its submission dated 2nd May 2022 and statement dated 18th May 2023 by Mr. Yateesh Wahaal, Director Finance, M3M Group indicated that M3M Group has made efforts to hide the facts / 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 23rd December 2021. It is further submitted that the records of the said entity for FY 2010-11 shows Mr. Basant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicates that the 1st respondent has a doubt regarding the involvement of the petitioner in commission of the crime and he is being summoned for disclosure and in case of his non-disclosure of any material, on the pretext of non-co-operation, the 1st respondent may proceed to arrest him. The petitioner is a retired employee aged 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 soc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... including the sovereignty and integrity of the country. 412. As a result, we have no hesitation in observing that in whatever form the relief is couched including the nature of proceedings, be it under Section 438 of the 1973 Code or for that matter, by invoking the jurisdiction of the Constitutional Court, 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 port ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provided under the PMLA and which has been relied upon the Courts while considering cases under the Act. The twin conditions serve as a definitive test for the Courts to form an opinion. 54. It is submitted by the Applicant that the twin conditions under the PMLA are not attracted 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 na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0. The 'bail' means as per Wharton's Law Lexicon, to "set at liberty a person arrested on security being taken for his appearance'. 31. As per the Encyclopaedia Britanhica, the bail is a procedure by which a Judge : or Magistrate sets at liberty 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. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elief of apprehension of arrest proceeding from prima facie substantial material entitling him to prearrest bail. The section can never be used by any individual to cultivate his rights when he is prima facie liable for an accusation 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed and committed to custody despite the bail having been granted with regard to the offences with which he was charged at the time when bail was considered and granted. *** 27. We may have again 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 and remanded to custody. Thus, in the present case, production of the accused was with the permission of the court. Thus, the present is not a case where investigating agency itself has 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 ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, even while granting limited interim anticipatory bail. 85.3. Section 438 CrPC does not compel or oblige courts to impose conditions limiting relief in 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 requi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 960 SC 1125 : (1961) 1 SCR 14 : 1960 Cri LJ 1504] ." 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. 85.8. 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 gra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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 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, i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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