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TMI Blog2024 (4) TMI 688X X X X Extracts X X X X X X X X Extracts X X X X ..... ther co-accused persons against whom similar allegations were made, have already been granted anticipatory bail by the Hon ble Supreme Court and by this Court, therefore, in the considered opinion of this Court, the present is a fit case to extend the benefit under Section 438 of Cr. P.C. to the applicant. The anticipatory bail application is allowed and it is directed that in the event of arrest of the applicant in connection with the aforesaid offence, she shall be released on anticipatory bail on her furnishing a personal bond for a sum of Rs. 50,000/- with one surety in the like sum to the satisfaction of the arresting officer on the fulfilment of conditions imposed - bail application allowed. - HON'BLE SHRI JUSTICE RAKESH MOHAN PANDEY For the Applicant : Mr. Krishna Tandon, Advocate. Mr. Abhimanyu Bhandari, Advocate (through video conferencing) For the Non-Applicant : Dr. S.K. Pandey, Advocate. ORDER 1. The present first bail application under Section 438 of the Code of Criminal Procedure, 1973 has been filed in relation to Crime No. ECIR/01/NGR/2011 dated 10.01.2011 renumbered as ECIR/RPSZO/05/2013 and its subsequent addendum dated 10.02.2020, registered at Police Stati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the magistrate under Section 170 of the Code. It is also observed that there is no need for filing a bail application as the case is merely forwarded to the court for the framing of charges and issuance of process for trial. He would further contend that in the present case, though the FIR was registered on 19.02.2010, the applicant was never directed to appear before the investigating agency and the same is evident from the notice dated 05.10.2020 which clearly says that in view of the medical condition as already intimated vide reply dated 13.09.2020 against the earlier summons, the applicant was permitted to represent through authorized person. He would also contend that during these long 11 years, the applicant was never directed to appear before the investigating agency, therefore at this stage, it would not be appropriate to direct her to surrender. He would further submit that in the matter of Satender Kumar Antil (supra), the Hon ble Supreme Court categorized the offences into four categories i.e. A, B, C D. Category C deals with the offences punishable under Special Act containing stringent provisions for bail such as PMLA, NDPS etc. He would submit that the applicant bei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the judgment of the Hon ble Supreme Court rendered in the matter of the Directorate of Enforcement vs. M. Gopal Reddy and Another, reported in 2023 LiveLaw (SC) 138 wherein it is held that in the case of Money Laundering offences, the preconditions of Section 45 of PMLA Act have to be satisfied for anticipatory bail. 6. I have heard learned counsel appearing for the parties, considered their rival submissions made herein above and perused the documents present on the record. 7. From a perusal of the documents, it appears that a search was conducted by the Income-Tax Department on 04.02.2010 and 05.02.2010 in the premises of Babulal Agrawal, Sunil Kumar Agrawal (CA) and other relatives and 230 passbooks of different persons were recovered. On 19.02.2010, the Economic Offence Wing, Raipur registered an FIR bearing No. 6 of 2010 under Section 13(e) and 13(2) of the Prevention of Corruption Act, 1988 and Section 3 of the Benami Transaction (Prohibition) Act, 1988. On 10.01.2011, ECIR/01/NGR/2011 was registered under Sections 3 4 of the PMLA Act 2002. On 14.05.2018, the main accused Babulal Agrawal was exonerated on identical allegations by the Adjudicating Authority, PMLA on the gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cer shall investigate into an offence under this Act unless specifically authorised, by the Central Government by a general or special order, and, subject to such conditions as may be prescribed.] (2) The limitation on granting of bail specified in sub-section (1) is in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail. [ Explanation .--For the removal of doubts, it is clarified that the expression Offences to be cognizable and non-bailable shall mean and shall be deemed to have always meant that all offences under this Act shall be cognizable offences and nonbailable offences notwithstanding anything to the contrary contained in the Code of Criminal Procedure, 1973 (2 of 1974), and accordingly the officers authorised under this Act are empowered to arrest an accused without warrant, subject to the fulfilment of conditions under section 19 and subject to the conditions enshrined under this section.] 9. The Hon ble Supreme Court in the matter of Siddharth vs. State of U.P. reported in 2021 SCC OnLine SC 615 in paragraphs 9 12 observed and held as under:- 9. We are in agreement with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations. The Hon ble Apex Court in the matter of M. Gopal Reddy (supra) in paragraph 5 of the report observed thus:- 5. We have heard learned counsel appearing on behalf of the respective parties at length. At the outset, it is required to be noted that respondent No. 1 is apprehending his arrest in connection with the complaint/case by the ED for the offence of money laundering under Section 3 of the Prevention of Money Laundering Act, 2002 and punishable under Section 4 of the said Act. An enquiry/investigation is going on against respondent No. 1 for the scheduled offence in connection with FIR No. 12/2019. Once the enquiry/investigation against respondent No. 1 is going on for the offence under the Act, 2002, the rigour of Section 45 of the Act, 2002 would be attracted. Section 45 of the Act, 2002 reads as under: 45. Offences to be cognizable and nonbailable. (1) [Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no person accused of an offence [under this Act] shall be released on bail or on his own bond unless ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cally observed by this Court that it is one thing to say that Section 45 of the Act, 2002 to offences under the ordinary law would not get attracted but once the prayer for anticipatory bail is made in connection with offence under the Act, 2002, the underlying principles and rigours of Section 45 of the Act, must get triggered although the application is under Section 438 Cr. PC. Therefore, the observations made by the High Court that the provisions of Section 45 of the Act, 2002 shall not be applicable in connection with an application under Section 438 Cr. PC is just contrary to the decision in the case of Dr. V.C. Mohan (supra) and the same is on misunderstanding of the observations made in the case of Nikesh Tarachand Shah (supra). Once the rigour under Section 45 of the Act, 2002 shall be applicable the impugned judgment and order passed by the High Court granting anticipatory bail to respondent No. 1 is unsustainable. In Pankaj Grover (supra), the High Court of Allahabad in para 38, 40 42 held as under:- 38. Change in society has caused complete change in nature, cause, mode, rate and impact of crime on individual member of the society and society at large. Further, all and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is identified that crime was committed, it is difficult to find out clues and thereby evidences; when evidences are available, nature of evidences is completely different as not possible to be collected by simple investigating, presented by prosecution agency and ultimately to convict and sentence; when sentenced, simple sentence is not effective to deal with such modern criminals and their criminality. A criminal of such modern criminality are respected and influential persons with position, status, standing and means thereby they are always in situation to influence proceeding in investigation and prosecution, tamper with the evidences and pressurise witnesses. 42. In socio-economic offences proceed of crimes are larger and further, offenders are economically sound, therefore, in releasing them on bail/anticipatory bail probability of abscondence not within country but beyond country is more probable. Usually socio-economic offenders abscond to some other country and after that it becomes difficult to bring them back and complete the criminal proceeding against them. Further, their monetary sound condition particularly proceed of crime obtained not by honest working but by de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as it may involve various activities and may differ from one case to another. Therefore, it is not advisable on the part of the court to categorise all the offences into one group and deny bail on that basis. Suffice it to state that law, as laid down in the following judgments, will govern the field:- 100.5. There need not be any insistence of a bail application while considering the application under Section 88, 170, 204 and 209 of the Code. 100.6. There needs to be a strict compliance of the mandate laid down in the judgment of this court in Siddharth (supra). The Hon ble Apex Court in the matter of Satender Kumar Antil vs. Central Bureau of Investigation and Another, reported in (2021) 10 SCC 773 in para 5 of the report observed thus:- 5. The trial Courts and the High Courts will keep in mind the aforesaid guidelines while considering bail applications. The caveat which has been put by learned ASG is that where the accused have not cooperated in the investigation nor appeared before the Investigating Officers, nor answered summons when the Court feels that judicial custody of the accused is necessary for the completion of the trial, where further investigation including a poss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ither participated nor cooperated in investigation. The concerned Special Court after taking cognizance on present criminal complaint ordered for summoning of the accused persons including the applicant. The investigating officer even after filing of present complaint did not apply for custody of the applicant. The co-accused Gautam Thapar was arrested consciously by the investigating officer during investigation and was denied bail by the Special Court and High Court and as such the applicant is standing on different footing from co-accused Gautam Thapar. The applicant was taken into custody due to dismissal of bail application vide order dated 20.01.2022 passed by the court of Sh. Sanjeev Aggarwal, Special Judge (PC Act)(CBI)-02 Rouse Avenue District Court, New Delhi. The applicant primarily not seeking bail on merit but on basis of observation made by the Supreme Court in para no 65 of Satinder Kumar Antil decision and as such applicant is not required to pass the test of section 45 PMLA. The conditions as per section 45 PMLA would be applicable, had the applicant filed an application either under section 439 of the Code after arrest during investigation or under section 438 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e matter and other co-accused persons against whom similar allegations were made, have already been granted anticipatory bail by the Hon ble Supreme Court and by this Court, therefore, in the considered opinion of this Court, the present is a fit case to extend the benefit under Section 438 of Cr. P.C. to the applicant. 11. Accordingly, the anticipatory bail application is allowed and it is directed that in the event of arrest of the applicant in connection with the aforesaid offence, she shall be released on anticipatory bail on her furnishing a personal bond for a sum of Rs. 50,000/- (Rupees Fifty Thousand only) with one surety in the like sum to the satisfaction of the arresting officer on the following conditions:- (i) she shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade her from disclosing such fact to the Court, (ii) she shall not act in any manner which will be prejudicial to fair and expeditious trial, and (iii) she shall appear before the trial Court on each and every date given to her by the said Court till disposal of the trial, (iv) she shall not involve herself in any offence o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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