9911796707
TMI Blog2023 (12) TMI 685X X X X Extracts X X X X X X X X Extracts X X X X ..... ORS. [ 2022 (7) TMI 1316 - SUPREME COURT] that the underlying principles and rigours of Section 45 of the Act must come into play and without exception ought to be reckoned to uphold the objectives of the Act, which is a special legislation providing for stringent regulatory measures for combating the menace of money laundering. Though the findings recorded by the Court while granting or refusing to grant bail would be tentative in nature, nonetheless the Court is expected to express prima facie opinion while granting or refusing to grant bail which would demonstrate an application of mind, particularly dealing with the serious economic offences. The evidence relating to strong relations between the Appellant and Mr. Suryakant Tiwari, between the Appellant and Mr. Manish Upadhyay, and between the Appellant and Mr. Anurag Chaurasia; the evidences of movement of funds acquired out of extortion syndicate run by Mr. Suryakant Tiwari to Manish Upadhyay, proxy of the appellant; the utilization of proceeds of crime and acquisition of properties by the appellant in the name of her mother Shanti Devi and cousin Mr. Anurag Chaurasia along with the details of the said properties etc. have be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . For the Respondent : Mr. S.V. Raju, A.S.G. Mr. Mukesh Kumar Maroria, AOR Mr. Zoheb Hossain, Adv. Mr. Annam Venkatesh, Adv. Ms. Sairica Raju, Adv. Mr. Chandra Prakash, Adv. Mr. Arkaj Kumar, Adv. Mr. Vivek, Adv. Ms. Manisha Dubey, Adv. Mr. Ankit Bhatia, Adv. Mr. Hitarth Raja, Adv. Agrimaa Singh, Adv. Mr. Kshitiz Aggarwal, Adv. Mr. Harsh Paul Singh, Adv. Mr. Samrat Goswami, Adv. Bhavini Srivastava, Adv. Mr. Vinayak Sharma, Adv. Mr. Gaurav Sarkar, Adv. Ms. Sonali Sharma, Adv. JUDGMENT BELA M. TRIVEDI, J. 1. Leave granted. 2. The order dated 23.06.2023 passed by the High Court of Chhattisgarh at Bilaspur in Miscellaneous Criminal Case No. 1258/2023 is assailed by way of present Appeal, whereby the High Court has dismissed the bail application filed by the appellant under Section 439 of Cr.P.C. The appellant was arrested on 02.12.2022 in connection with the Crime No. ECIR/RPZ0/09/2022 dated 29.09.2022, registered at the Police Station/Investigating Agency - Directorate of Enforcement, Zonal Office Raipur, Chhattisgarh, for the offences punishable under Sections 186, 204, 353, 384, 120-B of IPC read with Sections 3 and 4 of Prevention of Money Laundering Act, 2002 (for short PML Act ). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nataka Police filed the charge-sheet against the accused Suryakant Tiwari in respect of the FIR No. 129/2022 for the offence under Sections 204 and 353 of IPC, clarifying therein that accused found to have committed offence under Section 384 of IPC with his henchmen at Chhattisgarh State for which the report would be prayed to Chhattisgarh Police through proper channel .. . 16.06.2023 The Additional Chief Judicial Magistrate, Bengaluru, took cognizance under Sections 204 and 353 of the IPC on the charge-sheet submitted against the Suryakant Tiwari by the Karnataka Police. 23.06.2023 The High Court of Chhattisgarh at Bilaspur rejected the bail application of the appellant. 27.06.2023 The complainant- Mr. Badami of the FIR No. 129/2022 filed a protest petition under Section 173(8) of the Cr.P.C. against the final report submitted by the Karnataka State Police through Kadugodi Police Station and prayed for the completion of the investigation of offences under Sections 120-B and 384 of the IPC seeking permission to further investigate the matter and file supplementary charge-sheet under the scheduled offences of PMLA. 4. The appellant being aggrieved by the impugned order dated 23.06.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce, as stated above these facts had a bearing on the Petitioner s bail application, the same were sought to be placed before the Hon ble High Court by way of a covering memo dated 19.06.2023. 5. The said covering memorandum annexed the following documents: - A. Medical report of Myra Modi. B. Order sheets of the subsequent development which took place in the matter. A certified copy of the covering memo filed before the Hon ble High Court of Chhattisgarh at Bilaspur in MCrC No. 1258/2023 is annexed herewith and marked as ANNEXURE A. 6. After serving the said covering memo and the attached documents upon the Ld. Counsel appearing on behalf of ED, the same was filed with the registry of the Hon ble High Court on 19.06.2023 and was thereafter, mentioned before the Ld. Single Judge of the Hon ble High Court by the Petitioner s counsel, and these facts were orally brought to the knowledge of the Ld. Single Judge of Hon ble High Court. 7. While the matter was mentioned and Hon ble High Court was orally informed about the contents of the documents that were filed including the cognizance order dated 16.06.2023, detailed arguments were neither called upon by the Hon ble High Court, nor the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the court was also not filed answering the query, rather was filed making vague statements. 11. Though the said Chargesheet and the Cognizance order were neither pleaded nor argued before the High Court, an impudent attempt was sought to be made by alleging all throughout in the synopsis, list of dates, questions of law and the grounds in the SLP that the High Court had grossly erred in not appreciating the said documents. 12. Having regard to the above state of affairs, the Court has a reason to believe that there was a bold attempt made by and on behalf of the appellant to misrepresent the facts for challenging the impugned order. 13. The Certificate to be issued by the Advocate-on-Record and the Affidavit to be filed by or on behalf of the petitioner/appellant at the end of the SLP as per the provisions contained in the Supreme Court Rules, do carry sanctity in the eyes of law. It is unbelievable that the battery of lawyers appearing for the appellant did not notice the apparent fact that when the chargesheet and cognizance order were not in existence before the High Court when the arguments were concluded and the judgment was reserved, non-consideration of the same by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in relation to Sections 384 and 120-B, IPC could not be said to have survived as regards the said charge-sheet. (iii) The proceedings under the PMLA are contingent on the existence of the scheduled offence, and no proceedings under the PMLA can be continued against the person in absence or in isolation of scheduled offence, in view of the decision of this Court in Vijay Madanlal Choudhary Ors. v. Union of India Ors. 2022 SCC Online SC 929 (SLP(Crl.) No. 4634 of 2014). (iv) Pressing into service the proviso to Section 45, the submission was made that the appellant being a lady, she should be released on bail more particularly when she is in custody for more than one year and when the continued custody is not required. (v) There was no substantive evidence except the bare allegations made in the prosecution complaint lodged against her, and therefore the questions rebutting the presumption contained in Section 45 did not arise. (vi) There was no prima facie connection or relationship between the appellant and the co-accused- Suryakant Tiwari, Manish Upadhyay or Nikhil Chandrakar in the prosecution complaint filed by the ED, nor any evidence legally maintainable has been produced by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch case. ANALYSIS 18. The object of the PMLA hardly needs to be delineated. The said Act has been enacted to prevent money laundering and to provide for confiscation of property derived from, or involved in, money laundering and for the matters connected therewith and incidental thereto. As per Section 2(1)(p), Money Laundering has the meaning assigned to it in Section 3. The offence of Money Laundering has been defined in Section 3, which is punishable under Section 4 of the said Act. Section 45 makes the offences under the PMLA to be cognizable and non bailable. As regards the twin conditions for the grant of bail contained in Section 45(1), it has been held by the Three-Judge Bench in Vijay Madanlal (supra) that the underlying principles and rigours of Section 45 of the Act must come into play and without exception ought to be reckoned to uphold the objectives of the Act, which is a special legislation providing for stringent regulatory measures for combating the menace of money laundering. 19. Though it is true that the Court while considering an application seeking bail is not required to weigh the evidence collected by the investigating agency meticulously, nonetheless the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sten to Suryakant Tiwari. Also, it was an unwritten rule that instructions of Suryakant Tiwari meant the voice of Saumya Chaurasia and the powers to be. The fact that Suryakant Tiwari had personal close official dealings with her and was carrying her instructions to the Officers, made it possible for Suryakant Tiwari to also command senior District level officers. This illegal authority was essential for him to run his empire of illegal extortion from Coal Iron Pellet transportation. Without his concurrence, no NOG was issued by the district machinery. All this was made possible by the fact that he was in the good books of Mrs. Saumya Chaurasia. Therefore, she has directly indulged in the offence of Money Laundering as defined under section 3 of the PMLA, 2002 being actually involved in the process of Money Laundering by way of possession, concealment, use, acquisition and projecting the Proceeds of Crime as untainted property. As per the findings of the investigation, it can be inferred that Saumya Chaurasia has directly acquired proceeds of crime as defined under section 2(l)(u) of the PMLA, 2002 to an extent of more than Rs. 30 crores. ED's investigation makes it evident tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be released on bail, if the special court so directs: (2) 23. Recently, a Three-Judge Bench of this Court in Enforcement Directorate vs. Preeti Chandra observed in the order dated 04.08.2023 in SLP (Crl.) No. 7409 of 2023 as under: - The proviso to Section 45 of the Prevention of Money Laundering Act, 2002 confers a discretion on the Court to grant bail where the accused is a woman. Similar provisions of Section 437 of the Code of Criminal Procedure, 1973 have been interpreted by this Court to mean that the statutory provision does not mean that person specified in the first proviso to sub-section (1) of Section 437 should necessarily be released on bail. (See Prahlad Singh Bhati vs. NCT, Delhi and Another (2001) 4 SCC 280). 24. The use of the expression may be in the first proviso to Section 45 clearly indicates that the benefit of the said proviso to the category of persons mentioned therein may be extended at the discretion of the Court considering the facts and circumstances of each case, and could not be construed as a mandatory or obligatory on the part of the Court to release them. Similar benevolent provision for granting bail to the category of persons below the age of si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2023 having taken cognizance for the offence punishable under Section 204 and 353 IPC only, which are not the scheduled offences under the PMLA Act, no scheduled offence survived at the time of passing of the impugned order and that the proceedings were/are without jurisdiction. 27. Apart from the fact that neither the Chargesheet dated 08.06.2023 nor the cognizance order 16.06.2023 were placed on record during the course of arguments before the High Court as they never existed at that time, the I.O. in the Chargesheet filed in connection with the said FIR no. 129 of 2022 against Suryakant Tiwari has categorically mentioned that as the accused (Suryakant Tiwari) found to be committed offence under Section 384 of IPC with his henchmen at Chhattisgarh State for which the report would be prayed to Chhattisgarh Police through proper channel. Hence, the offence under Section 384 could not be said to have been dropped by the I.O. while submitting the chargesheet in respect of the said FIR. 28. That apart, it is very much pertinent to note that when the FIR is registered under particular offences which include the offences mentioned in the Schedule to the PMLA, it is the court of compete ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
