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TMI Blog2024 (5) TMI 1411X X X X Extracts X X X X X X X X Extracts X X X X ..... TMI 574 - SUPREME COURT] reiterated the principles governing the cancellation of bail and held ' The importance of assigning reasoning for grant or denial of bail can never be undermined. There is prima facie need to indicate reasons particularly in cases of grant or denial of bail where the accused is charged with a serious offence. The sound reasoning in a particular case is a reassurance that discretion has been exercised by the decision maker after considering all the relevant grounds and by disregarding extraneous considerations.' The general directions given in the judgment of SATENDER KUMAR ANTIL VERSUS CENTRAL BUREAU OF INVESTIGATION ANR. [ 2021 (10) TMI 1296 - SUPREME COURT] in relation to the process to be followed on production of the accused, who has not been arrested during the period of investigation, on filing of the Charge-Sheet/Complaint post the completion of investigation, remain the same and is also applicable to Special Acts, including PMLA, and, therefore, to the facts of the present case. Recently, the Supreme Court in TARSEM LAL VERSUS DIRECTORATE OF ENFORCEMENT JALANDHAR ZONAL OFFICE [ 2024 (5) TMI 837 - SUPREME COURT] , has reiterated that a compla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioner is right in his submission that these provisions were not applicable to the facts of the present case and, at the present stage, however, the learned Trial Court has merely used these provisions, their object, and the principles governing them, to supplement force to its decision to release the respondent on bond. The Impugned Order cannot be faulted on this account as well. There are no merits in the challenge of the petitioner to the Impugned Order - petition dismissed. - HON'BLE MR. JUSTICE NAVIN CHAWLA For the Petitioner Through: Mr. Anupam S Sharma, SPP with Mr. Prakarsh Airan, Ms.Harpreet Kalsi, Mr. Abhishek Batra Mr. Ripudaman Sharma, Advs. For the Respondent Through: Dr. Manish Aggarwal, Ms. Namrata Sharma, Ms. Rambha Singh, Advs. JUDGMENT 1. This petition has been filed under Section 482 read with Section 439(2) of the Code of Criminal Procedure, 1973 (in short, Cr. P.C. ) challenging the Order dated 22.08.2022 (hereinafter referred to as the Impugned Order ) passed by the learned Additional Sessions Judge 03, West-District, Tis Hazari Courts, Delhi (hereinafter referred to as the Trial Court ) in Complaint Case No. 02/2022, titled as Directorate of Enfo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount of Rs. 89 lakhs was acquired by the respondent as proceeds of crime generated due to criminal activities relating to the Scheduled Offence. 7. As far as the role of the respondent herein in the Offence of Money Laundering is concerned, in the Complaint, it is alleged as under:- Amit Kumar: The accused Amit Kumar is a habitual offender and various cases were registered against him under TOHO as well as PMLA. He has been sentenced for 5 years by the Hon'ble CBI Court, Panchkula, Haryana. The accused Amit Kumar did kidney transplantation operation by endangering the life of kidney recipient as well as of the persons whose kidney was removed. During investigation, it is established that Amit Kumar Raut@ Amish Raval had conducted various illegal kidney transplantation surgeries at newly setup hospital namely Gangotri Charitable Hospital at Dehradun. By conducting kidney transplantation operation of Late Mahendra Kumar Jain, Mrs. Archana Dogra and Mrs. Sarita illegally, he acquired proceeds of crime to the tune of Rs. 40 Lacs from them in cash as well as in bank account opened by him with Punjab National Bank by impersonating as Amish Raval . Further, he also earned an amount to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appearing for the petitioner submits that the respondent, in his application under Section 439 of the Cr. P.C. before the learned Trial Court, had concealed his previous involvements in the criminal cases and the past antecedents. He submits that the learned Trial Court has erred in granting bail to the respondent without giving an appropriate opportunity to the petitioner to oppose the Bail application / file its reply to the Bail application of the respondent. He submits that, had this opportunity been granted to the petitioner, the petitioner would have shown to the learned Trial Court as to why the respondent should not have been released on Bail. 13. As far as the criminal antecedents of the respondents are concerned, he submits that on 29.04.2008, an FIR/RC, being RC-1(E) 08/CBI/EDO/VII, was registered by the Central Bureau of Investigation (in short, CBI ) alleging the commission of Offence under Section 120B read with Sections 326/342/417/465/473/307/406 of the IPC read with Sections 18/19/20 of the TOHO Act by the respondent herein and the co-accused. It was alleged that the respondent along with the co-accused hatched a criminal conspiracy and in pursuance thereof, set-u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in one Shyam Nursing Home. He submits that then the FIR No(s).664/1995, 659/1995, and 673/1995 were registered at Police Station: Sodala, Jaipur, Rajasthan against him and other accused persons. These cases are also pending trial. 19. He submits that apart from this, another FIR, being FIR No.176/2000 at Police Station: Nizamuddin Railway Station, New Delhi, and FIR No. 18/2000 at Police Station: Guntur, Andhra Pradesh, pertaining to illegal kidney transplantations have also been registered against the respondent and the other co-accused persons. 20. The learned SPP submits that the respondent then shifted his base to Delhi and continued his illegal activities of kidney transplantations. 21. He submits that the respondent, along with his brother, who is also one of the co-accused, opened a hospital at Palam Vihar and allured many innocent and poor persons to their hospital and fraudulently removed their kidneys and illegally transplanted them into the bodies of the recipients for huge monetary considerations. He submits that in order to conceal his identity, the respondent changed his name from Santosh Rameshwar Raut to Amit Kumar . He submits that the respondent used different dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt in Tarsem Lal (Supra), is not applicable to the facts of the present case. He submits that the judgment of the Supreme Court in Pankaj Jain (supra) would apply to the facts of the present case as well, as the principles enunciated therein are generally applicable and there is embargo on releasing the accused on bail unless the accused satisfies the test of Section 45 of the PMLA. He submits that the respondent was not produced before the learned Trial Court as a free bird. He was already in custody in the case at Dehradun. He submits that there is also a risk of the respondent fleeing away from the process of the Court. 28. He submits that even if Section 45 of the PMLA is not attracted, it does not mean that the accused must be released on Bail. The general principles governing the release of the Applicant/Accused on Bail are still to be applied. He submits that, in the present case, the learned Trial Court has erred in not applying these general principles. 29. He submits that for the above reasons, as the Bail has been granted to the respondent by the learned Trial Court without considering the relevant factors, it is liable to be cancelled by this Court. In support, he plac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion has been preferred against the same by the respondent before the Punjab and Haryana High Court and the same is pending. 38. He submits that as regards the case in Delhi, being ECIR/7/DZ/2008, the respondent has been granted Bail. 39. He submits that the learned Trial Court has rightly relied upon the judgment of the Supreme Court in Satinder Kumar Antil (supra) to grant Bail to the respondent. He submits that the ECIR resulting from the complaint in question was registered in the year 2017. He submits that the petitioner did not deem it necessary to arrest the respondent during the course of the investigation and proceeded to file the subject complaint in the year 2022, without arresting the respondent. 40. He submits that the amount stated to be involved as the alleged proceeds of crime is only to the extent of Rs.89 lakhs, therefore, the rigours of Section 45 of the PMLA will not apply. 41. He submits that in Satender Kumar Antil (supra), the Supreme Court, in fact, has stated that the general principles would govern the grant of Bail even where such special provisions are applicable. He also places reliance on the judgment of the Supreme Court in Aman Preet Singh v. Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g; (v) likelihood of/actual misuse of bail; (vi) likelihood of the accused tampering with the evidence or threatening witnesses. 33. It is no doubt true that cancellation of bail cannot be limited to the occurrence of supervening circumstances. This Court certainly has the inherent powers and discretion to cancel the bail of an accused even in the absence of supervening circumstances. Following are the illustrative circumstances where the bail can be cancelled: 33.1. Where the court granting bail takes into account irrelevant material of substantial nature and not trivial nature while ignoring relevant material on record. 33.2. Where the court granting bail overlooks the influential position of the accused in comparison to the victim of abuse or the witnesses especially when there is prima facie misuse of position and power over the victim. 33.3. Where the past criminal record and conduct of the accused is completely ignored while granting bail. 33.4. Where bail has been granted on untenable grounds. 33.5. Where serious discrepancies are found in the order granting bail thereby causing prejudice to justice. 33.6. Where the grant of bail was not appropriate in the first place given ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CC 189 , held that: 18. In considering whether to cancel the bail, the court has also to consider the gravity and nature of the offence, prima facie case against the accused, the position and standing of the accused, etc. If there are very serious allegations against the accused, his bail may be cancelled even if he has not misused the bail granted to him. 19. In our opinion, there is no absolute rule that once bail is granted to the accused then it can only be cancelled if there is likelihood of misuse of bail. That factor, though no doubt important, is not the only factor. There are several other factors also which may be seen while deciding to cancel the bail. 46. The learned Trial Court in the Impugned Order, while granting Bail to the respondent, has given the following reasons: 3. The Court finds that the ECIR of this case was registered in the year 2017. The Directorate of Enforcement took more than four and half years to investigate the case. The IO consciously did not arrest applicant/accused Amit Kumar Raut during investigation but attached his property i.e. Villa No. 49, Tatvam Villa, Vipul World, Sector-48, Gurugram, as well as his bank account maintained in PNB, Dehrad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uisite Conditions (1) Not arrested during investigation. (2) Cooperated throughout in the investigation including appearing before investigating officer whenever called. (No need to forward such an accused along with the charge-sheet Siddharth v. State of U.P., (2022) 1 SCC 676) Category A After filing of charge-sheet/complaint taking of cognizance (a) Ordinary summons at the 1st instance/including permitting appearance through lawyer. (b) If such an accused does not appear despite service of summons, then bailable warrant for physical appearance may be issued. (c) NBW on failure to appear despite issuance of bailable warrant. (d) NBW may be cancelled or converted into a bailable warrant/summons without insisting physical appearance of the accused, if such an application is moved on behalf of the accused before execution of the NBW on an undertaking of the accused to appear physically on the next date/s of hearing. (e) Bail applications of such accused on appearance may be decided without the accused being taken in physical custody or by granting interim bail till the bail application is decided. Category B/D On appearance of the accused in court pursuant to process issued bail app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under: 43. The scope and ambit of Section 170 has already been dealt with by this Court in Siddharth v. State of U.P., (2022) 1 SCC 676 This is a power which is to be exercised by the court after the completion of the investigation by the agency concerned. Therefore, this is a procedural compliance from the point of view of the court alone, and thus the investigating agency has got a limited role to play. In a case where the prosecution does not require custody of the accused, there is no need for an arrest when a case is sent to the Magistrate under Section 170 of the Code. There is not even a need for filing a bail application, as the accused is merely forwarded to the court for the framing of charges and issuance of process for trial. If the court is of the view that there is no need for any remand, then the court can fall back upon Section 88 of the Code and complete the formalities required to secure the presence of the accused for the commencement of the trial. Of course, there may be a situation where a remand may be required, it is only in such cases that the accused will have to be heard. Therefore, in such a situation, an opportunity will have to be given to the accused p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fences would apply to these cases also. To clarify this position, we may hold that if an accused is already under incarceration, then the same would continue, and therefore, it is needless to say that the provision of the Special Act would get applied thereafter. It is only in a case where the accused is either not arrested consciously by the prosecution or arrested and enlarged on bail, there is no need for further arrest at the instance of the court. Similarly, we would also add that the existence of a pari materia or a similar provision like Section 167(2) of the Code available under the Special Act would have the same effect entitling the accused for a default bail. Even here the court will have to consider the satisfaction under Section 440 of the Code. 51. It is, therefore, clear that the general directions given in the judgment of Satinder Kumar Antil (supra-2022) in relation to the process to be followed on production of the accused, who has not been arrested during the period of investigation, on filing of the Charge-Sheet/Complaint post the completion of investigation, remain the same and is also applicable to Special Acts, including PMLA, and, therefore, to the facts of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 (1) (b) of the PMLA. 55. Considering Section 88 of the Cr. P.C., the Supreme Court held that the same shall apply after filing of the complaint under Section 44 (1) (b) of the PMLA. It confers a discretionary power on the Special Court to call upon the accused to furnish bonds for his appearance before the Court. The object of Section 88 of the Cr. P.C. is to ensure that the accused regularly appears before the Court. When an accused appears before the Special Court on summons issued on the complaint, and offers to submit bonds in terms of Section 88 of the Cr. P.C., therefore, there is no reason for the Special Court to refuse or decline to accept the bonds. The Supreme Court further held that if an accused appears pursuant to a summon issued on the complaint, he is not in custody and, therefore, there is no question of granting him Bail, and an order accepting bonds under Section 88 of the Cr. P.C. from the accused does not amount to a grant of Bail. 56. The Supreme Court denounced the practice of some of the Special Courts under the PMLA of taking the accused into custody after they appear pursuant to the summons issued on the complaint. The Court held that where, before the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id provisions are inconsistent with any of the provisions of the PMLA; b) If the accused was not arrested by the ED till filing of the complaint, while taking cognizance on a complaint under Section 44 (1) (b), as a normal rule, the Court should issue a summons to the accused and not a warrant. Even in a case where the accused is on bail, a summons must be issued; c) After a summons is issued under Section 204 of the CrPC on taking cognizance of the offence punishable under Section 4 of the PMLA on a complaint, if the accused appears before the Special Court pursuant to the summons, he shall not be treated as if he is in custody. Therefore, it is not necessary for him to apply for bail. However, the Special Court can direct the accused to furnish bond in terms of Section 88 of the CrPC; d) In a case where the accused appears pursuant to a summons before the Special Court, on a sufficient cause being shown, the Special Court can grant exemption from personal appearance to the accused by exercising power under Section 205 of the CrPC; e) If the accused does not appear after a summons is served or does not appear on a subsequent date, the Special Court will be well within its powers t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erless to exercise power under Section 19 to arrest a person shown as an accused in the complaint; and j) If the ED wants custody of the accused who appears after service of summons for conducting further investigation in the same offence, the ED will have to seek custody of the accused by applying to the Special Court. After hearing the accused, the Special Court must pass an order on the application by recording brief reasons. While hearing such an application, the Court may permit custody only if it is satisfied that custodial interrogation at that stage is required, even though the accused was never arrested under Section 19. However, when the ED wants to conduct a further investigation concerning the same offence, it may arrest a person not shown as an accused in the complaint already filed under Section 44 (1) (b), provided the requirements of Section 19 are fulfilled. 24. We are making it clear that we are dealing with a fact situation where the accused shown in the complaint under Section 44 (1) (b) of the PMLA was not arrested by the ED by the exercise of power under Section 19 of the PMLA till the complaint was filed. 58. The Supreme Court in Tarsem Lal (supra) held that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be no caveat to the submission of the learned counsel for the petitioner, however, in the facts of the present case, and applying the principles enunciated by the Supreme Court in Satender Kumar Antil (supra-2022) and Tarsem Lal (supra), the Impugned Order cannot be faulted as the respondent was, in fact, not required to apply for Bail, having been not arrested during the course of the investigation. 62. As far as Section 436A and Section 428 of the Cr. P.C. are concerned, though again the learned counsel for the petitioner is right in his submission that these provisions were not applicable to the facts of the present case and, at the present stage, however, the learned Trial Court has merely used these provisions, their object, and the principles governing them, to supplement force to its decision to release the respondent on bond. The Impugned Order cannot be faulted on this account as well. 63. As far as the other cases against the respondent are concerned, in the peculiar facts of the present case, as considered hereinabove, they cannot influence the grant of bail to the respondent in the case in hand. However, this order shall have no effect in case the petitioner was to app ..... X X X X Extracts X X X X X X X X Extracts X X X X
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