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TMI Blog2024 (6) TMI 1118X X X X Extracts X X X X X X X X Extracts X X X X ..... Kumar Singh and M/s RK Investment Consultancy - There are materials against the present petitioner regarding her specific role in the offence of the prosecution complaint that she committed the offence of money laundering with respect to the proceeds of crime. It appears that the petitioner knowingly assisted his son who is co-accused to purchase immovable properties at New Delhi in his own name to the tune of Rs 22.5 Crore from the commission/bribe amount, which was acquired by his son Veerendra Kumar Ram. Further, the bank account statements of the petitioner reflect huge credits to the tune of Rs 4.525 crores. There are materials against the petitioner regarding his specific role in the offence which is mentioned in Para-11.4 of the prosecution complaint that he committed the offence of money laundering with respect to the proceeds of crime. It has been settled by Hon ble Apex Court time and again in its various pronouncements that the powers under Section 438 Cr.P.C., is of extra-ordinary character and must be exercised sparingly in exceptional cases only and therefore, the anticipatory bail can be granted only in exceptional circumstances where the court is prima facie of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioners were actively involved in the offence of Money Laundering as defined in Section 3 of the PMLA. As against that there is nothing on record to satisfy the conscience of the Court that the petitioners are not guilty of the said offence and the special benefit as contemplated in the proviso to Section 45 should be granted to the petitioners who are the lady and sick person respectively - on the basis of aforesaid discussion the Court does not find any substance in the submission of the learned counsel for the petitioners. This Court, in view of the aforesaid material available against the petitioners, is of the view that in such a grave nature of offence, which is available on the face of the material, applying the principle of grant of anticipatory bail wherein the principle of having prima facie case is to be followed, this Court is of the view that the nature of allegation since is grave and as such, it is not a fit case of grant of anticipatory bail. This Court is of the view that the instant applications are fit to be dismissed and as such, stand dismissed. - HON BLE MR. JUSTICE SUJIT NARAYAN PRASAD For the Petitioner : Mr. Jitendra S. Singh, Advocate Mr. Shubhashis Rasik ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts were also being used in such routing of funds. Therefore, findings related to such routing of funds were shared with the Delhi Police u/s 66 (2) of the PMLA by the I.O. Further, on the basis of the information shared U/s 66 (2) of PMLA, 2002, an FIR No. 22/2023, was registered by Economic Offence Wing (EOW), Delhi against (i) Veerendra Kumar Ram, (ii) Mukesh Mittal and (iii) unknown Others under Sections 419, 420, 465, 466, 468, 471, 473, 474, 476, 484, and 120-B of IPC, 1860, and Section 7 and 5 of Specified Bank Notes (Cessation of Liabilities) Act; 2017. 7. The prosecution complaint shows that various records, documents, digital devices, cash, jewellery, vehicles were recovered and seized during course of search conducted on 21.02.2023 and during investigation they were found accumulated through proceeds of crime. 8. Accordingly, prosecution has submitted prosecution complaint in the matter and based upon that cognizance has been taken on 29.04.2023 for the offence u/s 3 and u/s 4 of PML Act, 2002 against the present petitioners and others. 9. There are specific allegations against the petitioner/accused namely Rajkumari that she knowingly assisted to her husband who is co-ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on purportedly connected with the petitioner's husband. Therefore, the petitioners do not even have a purported connection to the predicate offence of the present ECIR. VI. The Petitioners are not involved in laundering of money as they have disclosed their wealth to the Income Tax Department which is apparent from the records. VII. It is the settled assumption that person having/dealing with financial transactions cannot know at the outset that the funds involved in the financial transaction are proceeds of crime and the petitioners are the wife and father of that accused hence, it does not lead to an automatic inference that the money given by that accused are proceeds of crime. However, in the instant case Veerendra Kumar Ram (accused no. 1) and the petitioners themselves are not even accused in predicate offence. VIII. That the twin conditions of section 45 PMLA are not applicable to the petitioner namely Rajkumari as she is a woman and falls within the proviso to section 45 (1) of the PMLA which appears to further the constitutional mandate of Article 15 (3) of the Constitution of India which enables framing of laws for the benefit of women and children. IX. In the aforesa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e arranged the bogus entries of Rs. 9.3 crores into the bank account of his wife Rajkumari and of Rs. 4.535 into the bank account of his father Genda Ram and the amount was utilized for purchasing vehicles, other properties and living a luxurious life. (IV) Learned counsel for the respondent-ED has further submitted that regular bail petition of co- accused Tara Chand and Harish Yadav has been rejected by this Court vide order dated 01.03.2024 passed in B.A. No. 11095 of 2023 and BA No. 9734 of 2023 respectively and anticipatory bail petition of co-accused, Mukesh Mittal has also been rejected by this Court vide order dated 16.02.2024 passed in ABA No. 10671 of 2023, looking into the gravity of offence and applying the rigours of Section 45 of PML Act, 2002. (V) The Petitioners have directly indulged in the process of possession, concealment, use of proceeds of crime and also knowingly assisted Veerendra Kumar Ram (Accused no 1) in projecting the same as untainted, hence, the present petitioners have committed the offence of Money Laundering as defined under section 3 of PML Act 2002. (VI) The provisions of the PMLA are an independent offence as the PMLA is a different special stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he PMLA provide that unless the contrary is proved, the authority or the Court shall presume that proceeds of crime are involved in money laundering and the burden to prove that the proceeds of crime are not involved, lies on the Petitioner. (XII) It is submitted that the contention of the learned counsel for the petitioner that the proviso to section 45 cannot be attracted in the present case only on account of the Applicant being a woman is totally misplaced. The learned counsel for the respondent ED put his reliance upon the judgment as rendered by the Delhi High Court in Shivani Rajiv Saxena v. Directorate of Enforcement Anr. vide order dated 15.09.2017 in Bail Appln.1518/2017 wherein bail was denied to the accused, who was a woman, as the court observed that the application of discretion described in proviso to section 45 (1) has to be applied consider the unique circumstances surrounding specific groups of individuals, rather than being applied universally as a standard rule that all those categories of people in the said proviso must be granted bail. (XIII) Further, drawing an analogy with Section 437 (1) Cr.P.C. and also relying upon the judgment of Delhi High Court in Meen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 8th to the 10th June, 1998, urging the State parties to enact a comprehensive legislation. This is evident from the introduction and Statement of Objects and Reasons accompanying the Bill which became the 2002 Act. The same reads thus: INTRODUCTION Money-laundering poses a serious threat not only to the financial systems of countries, but also to their integrity and sovereignty. To obviate such threats international community has taken some initiatives. It has been felt that to prevent money-laundering and connected activities a comprehensive legislation is urgently needed. To achieve this objective the Prevention of Money-laundering Bill, 1998 was introduced in the Parliament. The Bill was referred to the Standing Committee on Finance, which presented its report on 4th March, 1999 to the Lok Sabha. The Central Government broadly accepted the recommendation of the Standing Committee and incorporated them in the said Bill along with some other desired changes. STATEMENT OF OBJECTS AND REASONS It is being realised, world over, that money-laundering poses a serious threat not only to the financial systems of countries, but also to their integrity and sovereignty. Some of the initia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rein the definition of proceeds of crime as provided under Section 2 (1) (u) of the Act, 2002 which reads as under: 2(u) proceeds of crime means any property derived or obtained, directly or indirectly, by any person as a result of criminal activity relating to a scheduled offence or the value of any such property or where such property is taken or held outside the country, then the property equivalent in value held within the country or abroad; [ Explanation . For the removal of doubts, it is hereby clarified that proceeds of crime include property not only derived or obtained from the scheduled offence but also any property which may directly or indirectly be derived or obtained as a result of any criminal activity relatable to the scheduled offence;] 23. It is evident from the aforesaid provision by which the proceeds of crime means any property derived or obtained, directly or indirectly, by any person as a result of criminal activity relating to a scheduled offence or the value of any such property or where such property is taken or held outside the country, then the property equivalent in value held within the country or abroad. In the explanation it has been referred that fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected with the [proceeds of crime including its concealment, possession, acquisition or use and projecting or claiming] it as untainted property shall be guilty of offence of money-laundering. [ Explanation . For the removal of doubts, it is hereby clarified that, (i) a person shall be guilty of offence of money-laundering if such person is found to have directly or indirectly attempted to indulge or knowingly assisted or knowingly is a party or is actually involved in one or more of the following processes or activities connected with proceeds of crime, namely: (a) concealment; or (b) possession; or (c) acquisition; or (d) use; or (e) projecting as untainted property; or (f) claiming as untainted property, in any manner whatsoever; (ii) the process or activity connected with proceeds of crime is a continuing activity and continues till such time a person is directly or indirectly enjoying the proceeds of crime by its concealment or possession or acquisition or use or projecting it as untainted property or claiming it as untainted property in any manner whatsoever. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code (45 of 1860). (5) Subject to any rules made in this behalf by the Central Government, any officer referred to in sub-section (2) may impound and retain in his custody for such period, as he thinks fit, any records produced before him in any proceedings under this Act: Provided that an Assistant Director or a Deputy Director shall not (a) impound any records without recording his reasons for so doing; or (b) retain in his custody any such records for a period exceeding three months, without obtaining the previous approval of the [Joint Director]. 33. The various provisions of the Act, 2002 alongwith interpretation of the definition of proceeds of crime has been dealt with by the Hon ble Apex Court in the case of Vijay Madanlal Choudhary and Ors. Vs. Union of India and Ors., (2022) SCC OnLine SC 929 wherein the Bench comprising of three Hon ble Judges of the Hon ble Supreme Court has decided the issue by taking into consideration the object and intent of the Act, 2002. The definition of proceeds of crime as under paragraph-251. 34. The interpretation of the condition which is to be fulfill ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has also been taken into consideration. Relevant paragraph, i.e., paragraphs- 422, 424, 425, 431, 434 reads as under: 422. The validity of this provision has been challenged on the ground of being violative of Articles 20 (3) and 21 of the Constitution. For, it allows the authorised officer under the 2002 Act to summon any person and record his statement during the course of investigation. Further, the provision mandates that the person should disclose true and correct facts known to his personal knowledge in connection with the subject matter of investigation. The person is also obliged to sign the statement so given with the threat of being punished for the falsity or incorrectness thereof in terms of Section 63 of the 2002 Act. Before we proceed to analyse the matter further, it is apposite to reproduce Section 50 of the 2002 Act, as amended. -----: 424. By this provision, the Director has been empowered to exercise the same powers as are vested in a civil Court under the 1908 Code while trying a suit in respect of matters specified in sub-section (1). This is in reference to Section 13 of the 2002 Act dealing with powers of Director to impose fine in respect of acts of commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gets triggered if the person is compelled to be a witness against himself, which may not happen merely because of issuance of summons for giving oral evidence or producing documents. Further, to be a witness is nothing more than to furnish evidence and such evidence can be furnished by different modes. The Court went on to observe as follows: Broadly stated the guarantee in article 20 (3) is against testimonial compulsion . It is suggested that this is confined to the oral evidence of a person standing his trial for an offence when called to the witness-stand. We can see no reason to confine the content of the constitutional guarantee to this barely literal import. So to limit it would be to rob the guarantee of its substantial purpose and to miss the substance for the sound as stated in certain American decisions. The phrase used in Article 20 (3) is to be a witness . A person can be a witness not merely by giving oral evidence but also by producing documents or making intelligible gestures as in the case of a dumb witness (See section 119 of the Evidence Act) or the like. To be a witness is nothing more than to furnish evidence , and such evidence can be furnished through the lip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... different matter that the information and evidence so collated during the inquiry made, may disclose commission of offence of money- laundering and the involvement of the person, who has been summoned for making disclosures pursuant to the summons issued by the Authority. At this stage, there would be no formal document indicative of likelihood of involvement of such person as an accused of offence of money-laundering. If the statement made by him reveals the offence of money-laundering or the existence of proceeds of crime, that becomes actionable under the Act itself. To put it differently, at the stage of recording of statement for the purpose of inquiring into the relevant facts in connection with the property being proceeds of crime is, in that sense, not an investigation for prosecution as such; and in any case, there would be no formal accusation against the noticee. Such summons can be issued even to witnesses in the inquiry so conducted by the authorised officials. However, after further inquiry on the basis of other material and evidence, the involvement of such person (noticee) is revealed, the authorised officials can certainly proceed against him for his acts of commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he scheduled offence, meaning thereby, the words any property which may directly or indirectly be derived or obtained as a result of any criminal activity relatable to the scheduled offence will come under the fold of the proceeds of crime. 38. So far as the purport of Section 45 (1)(i)(ii) is concerned, the aforesaid provision starts from the non- obstante clause that notwithstanding anything contained in the Code of Criminal Procedure, 1973, no person accused of an offence under this Act shall be released on bail or on his own bond unless ( i) the Public Prosecutor has been given an opportunity to oppose the application for such release; and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail Sub-section (2) thereof puts limitation on granting bail specified in sub-section (1) in addition to the limitations under the Code of Criminal Procedure, 1973 or any other law for the time being in force on granting of bail. The explanation is also there as under sub-section (2) thereof which is for the purpose of re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [(1A) Notwithstanding anything contained in the Criminal Procedure Code, 1973 (2 of 1974), or any other provision of this Act, no police officer 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 Criminal Procedure Code, 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 non-bailable offences notwithstanding anything to the contrary contained in the Criminal Procedure Code, 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.] 372. Section 45 has been amended vide Act 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be complied with. The Court is required to be satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and he is not likely to commit any offence while on bail. It has further been observed that as per the statutory presumption permitted under Section 24 of the Act, the Court or the Authority is entitled to presume unless the contrary is proved, that in any proceedings relating to proceeds of crime under the Act, in the case of a person charged with the offence of money laundering under Section 3, such proceeds of crime are involved in money laundering. Such conditions enumerated in Section 45 of PML Act will have to be complied with even in respect of an application for bail made under Section 439 Cr. P.C. in view of the overriding effect given to the PML Act over the other law for the time being in force, under Section 71 of the PML Act. For ready reference, paragraph-17 of the said judgment reads as under: 17. As well settled by now, the conditions specified under Section 45 are mandatory. They need to be complied with. The Court is required to be satisfied that there are reasonable grounds for believing that the accused is not gui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 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. 43. The Hon ble Apex Court in the case of Gautam Kundu vs. Directorate of Enforcement (Prevention of Money-Laundering Act), Government of India through Manoj Kumar, Assistant Director, Eastern Region, (2015) 16 SCC 1 has been pleased to hold at paragraph -30 that the conditions specified under Section 45 of PMLA are mandatory and need to be complied with, which is further strengthened by the provisions of Section 65 and also Section 71 of PMLA. Section 65 requires that the provisions of CrPC shall apply insofar as they are not inconsistent with the provisions of this Act and Section 71 provides that the provisions of PMLA shall have overriding effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. PMLA has an overriding effect and the provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red herein so as to come to the conclusion as to whether the parameter as fixed under Section 45 (ii) of the PMLA is being fulfilled in order to reach to the conclusion that whether it is a fit case where anticipatory bail is to be granted or not. Relevant paragraphs of prosecution complaint are referred herein : 2.3 As per case diary 3941459 dt. 24.12.2019, Suresh Prasad Verma in his statement before ACE claimed that the cash amount seized belonged to Veerendra Kumar Ram, then Chief Engineer, Subernrekha project and that his wife Rajkumari used to visit the rented-out premises of Alok Ranjan. Later, Alok Ranjan in his written submission to the Superintendent of Police, ACB, Jamshedpur vide Letter no 3929 dt 30.12.2019 issued by Jail Superintendent, Chaibasa, W. Singhbhum, Alok Ranjan stated that he used to stay alone as a tenant in the first floor room rented out by Smt. Pushpa Verma at the premises located at Dev Hari Kunj, Anand Vihar Colony, Road No. 11. PS M.G.M., Jamshedpur and the room was furnished by Sh. S.P. Verma including almirah from where the cash of Rs 2.67 crores was seized and Alok Ranjan also claimed that the said cash amount seized belonged to S.P. Verma since he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 23 wherein he stated that on the day of search i.e. on 15.11.2019 conducted by ACB Jamshedpur at the rented flat of Alok Ranjan, (house owned by Pushpa Verma, wife of S.P. Verma), Veerendra Kumar Ram called him and asked him to go to flat of Alok Ranjan and also stated that his (Veerendra Kumar Ram's) cash was kept at the flat of Alok Ranjan, but he could not enter the flat as the police were there. All such evidences, which will also be discussed in detail in paras below, proves that Rs 2.67 crores found and seized by ACB Jamshedpur from the possession of Alok Ranjan was the ill earned money of Veerendra Kumar Ram only. 7.1.1 Other evidences and findings of the investigation are discussed below The bank account statement of account no. 11008836933 in the name of Veerendra Kumar Ram (Accused no. 1) maintained with state bank of India was analyzed----- When Alok Ranjan was asked to explain the source of such cash deposited by him, he stated in his statement dated 24.02.2023, that this cash was handed over to him by Veerendra Kumar Ram for depositing in the above- mentioned bank account. When Alok Ranjan was asked how many times and how much cash has been given to him by Veerendr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f tenders from the contractors. He further disclosed in his statement dated 14.04.2023 that the commission amount taken from the contractors is 3.2% of the total tender value and that his share was 0.3% of the total tender value which at some postings was higher than 0.3%. However, given the total Proceeds of crime acquired by him, it is believed that his percentage (%) in the commission bribe must have been higher, as he himself stated in his statement dated 15.04.2023 that his commission varied from 03% to 1% of the tender value. 7.2.3 During the course of search on 21.02.2023 at the residential premises of Veerendra Kumar Ram located at 447/A, 2nd Floor, Road No. 4, Ashok Nagar, Ranchi cash amounting to Rs 7,82,500 was recovered and seized and when Veerendra Kumar Ram was asked to explain the source of the said cash, he stated in his statement dated 15.04.2023 that the said cash was the commission received by him in lieu of allotment of tenders. 7.2.4 During the course of search on 21.02.2023 at the Government residential premises of Sh. Veerendra Kumar Ram, Bungalow No.CE/1. Road No. 7, CH. Area East, Near Jubilee Park, Bistupur, Jamshedpur 831001, one Toyota Innova Car having ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... funds were credited into the joint bank account of Veerendra Kumar Ram and Raj Kumari, from the two firms named RK Investments and Consultancy and RP Investment and Consultancy Search u/s 17 of the PMLA was conducted at the residence of Rakesh Kumar Kedia and Reena Pal and the Statements of Reena Pal and Rakesh Kumar Kedia were recorded u/s 17 of PMLA on 21.02.2023 wherein Beena Pal denied having any firm existing in her name or any bank account operating in the name of such firm. She simply stated that her husband Vijay Pal handles all her financial dealings whereas Rakesh Kumar Kedia in his statement dated 21.02.2023 stated that Mukesh Mittal, his relative, is handling all his financial dealings Rakesh Kumar Kedia further stated that he is not aware about existence of any firm in his name and simply stated that he was paid an amount in lieu of giving consent to operate his account. Vijay Pal, an employee of CA Mukesh Mittal, further stated in his statement dated 29.03.2023 that he helped Rakesh Kumar Kedia to open two bank accounts in his name and also opened a/c in the name of his wife Reena Pal. He also stated that he opened the firm M/s RP Investment and Consultancy and bank ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 759, Rs9.99 lakhs from Krishna Enterprise (Equitas Small Finance Bank, 200000747964) and Rs 45 lakh from Decent Traders (Equitas Small Finance Bank, 200001383885). 8. Brief detail of persons examined Under Section 17 50 of PMLA: During the course of search and investigation, statements of several persons were recorded under the provisions of PMLA. The gist of the statements relevant to this investigation is as under: - 8.1 Veerendra Kumar Ram (Accused No. 1): Veerendra Kumar Ram (Accused No. 1) is a chief engineer in Rural Department Special Zone and also in an additional charge of Rural Works Department. In his statement recorded u/s 50 of PMLA during custodial interrogation and in judicial custody on different dates wherein he interalia accepted that commission was taken in lieu of allotment of tenders and that the total commission was 3.2% of tender value and that his share of commission was 0.3% of the total tender amount which varies from 0.3% to 1%. He admitted that he acquired two immovable properties in Delhi in the name of his wife Rajkumari and one immovable property in Delhi in the name of his father Genda Ram out of the commission amount against allotment of tenders. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... res to the account of his father Genda Ram to purchase a farm house in Delhi. Later, Mukesh Mittal later arranged the routing of the said Rs. 5 crores into the bank account of Genda Ram. 11. Role of Accused in offence of money laundering under Section 3 of PMLA, 2002 11.1 Accused No. 1-Veerendra Kumar Ram A) Shri Veerendra Kumar Ram is a Government Employee posted as Chief Engineer in Rural development Special Zone and Rural Works Department, both under Govt. of Jharkhand. b) He acquired huge movable and immovable assets by misusing his official position. He used to take commission for every tender work allotted thereby directly involved in generation of proceeds of crime. c) He acquired the ill-gotten funds or the proceeds of crime and arranged routing to the bank accounts of his family members and further used those funds in acquiring immovable and movable properties in their name thus projecting untainted money as tainted. d) Veerendra Kumar Ram and his family is also found to be living a luxurious lifestyle which is not possible with the salary income of Veerendra Kumar Ram who was the only the earning member of his family. Although, his father gets pension that is in no way ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e from cash sales of vegetables etc. which found to be just a tool to project his tainted money as untainted. h) Hence, Veerendra Kumar Ram had directly indulged, knowingly is as party and is actually involved in all the activities connected with the offence of money laundering, ie, use or acquisition, possession, concealment, and projecting or claiming as untainted property, as defined u/s 3 of PMLA, 2002. Therefore, Veerendra Kumar Ram is guilty of the offence of money laundering u/s 3 of PMLA, 2002 and punishable under section 4 of PMLA. 11.3 Accused No. 3- Rajkumari (wife of Veerendra Kumar Ram) On perusal bank account statements of Rajkumari bearing account number 2577101052100, it is seen that there is credit of Rs 9.90,000 from M/s RP Investment and Consultancy and Re 4,00,000 from Manoj Kumar Singh. Further, it is also seen from the statement of bank account no 2577257010412 in her name that there are credits of Rs 5,70,49,910.00 from M/s RK Investment and consultancy and Rs 3,59,72,230.00 from M/s RP Investment and Consultancy, Veerendra Kumar Ram has admitted in his statement that these credits are out of the entries received in the sand accounts against cash, the source ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he tune of Rs 4.525 crores and Veerendra Kumur Ram has admitted in his statement that the same are out of the commission received by him. c) Hence, Genda Ram has directly indulged in the process or activities of possess, concealment, use of proceeds of crime to the tune of at least Rs 22.5 crores. Hence, the accused person Genda Ram has committed the offence of Muney Laundering as defined under section 3 of PMLA and is, therefore, liable to be punished under section 4 of PMLA, 2002. 46. It is evident from the prosecution complaint that the petitioner namely, Rajkumari, is the wife of prime accused Veerendra Kumar Ram and on perusal bank account statements of the petitioner it is seen that there are huge credits in her bank accounts from M/s RP Investment and Consultancy, Manoj Kumar Singh and M/s RK Investment Consultancy. The co-accused Veerendra Kumar Ram has admitted in his statement that these credits are out of the entries received in the said accounts against cash, the source of which was the commission received by Veerendra Kumar Ram. The petitioner has purchased immovable properties at Saket and Defence Colony, New Delhi, in her name and the purchase consideration is paid f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the companies providing entries by charging commission. 49. Thus, prima-facie, it appears that the petitioner knowingly assisted his son who is co-accused to purchase immovable properties at New Delhi in his own name to the tune of Rs 22.5 Crore from the commission/bribe amount, which was acquired by his son Veerendra Kumar Ram. Further, the bank account statements of the petitioner reflect huge credits to the tune of Rs 4.525 crores. There are materials against the petitioner regarding his specific role in the offence which is mentioned in Para-11.4 of the prosecution complaint that he committed the offence of money laundering with respect to the proceeds of crime. 50. It is pertinent to mention here that this Court is dealing herein with the petition of pre-arrest bail which is to be granted in exercise of power conferred under Section 438 of Cr.P.C. The law is well settled so far as the consideration of the prayer of the pre-arrest bail is concerned, what is the requirement to be looked into for the purpose of granting the said benefit. 51. It has been settled by Hon ble Apex Court time and again in its various pronouncements that the powers under Section 438 Cr.P.C., is of ext ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence; (iii) The possibility of the applicant to flee from justice; (iv) The possibility of the accused's likelihood to repeat similar or other offences; (v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her; (vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people; (vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern; (viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to the free, fair and full investigation and there should be preve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at no straitjacket formula can be applied for grant or refusal of anticipatory bail. The judicial discretion of the Court shall be guided by various relevant factors and largely it will depend upon the facts and circumstances of each case. The Court must draw a delicate balance between liberty of an individual as guaranteed under Article 21 of the Constitution and the need for a fair and free investigation, which must be taken to its logical conclusion. Arrest has devastating and irreversible social stigma, humiliation, insult, mental pain and other fearful consequences. Regardless thereto, when the Court, on consideration of material information gathered by the Investigating Agency, is prima facie satisfied that there is something more than a mere needle of suspicion against the accused, it cannot jeopardise the investigation, more so when the allegations are grave in nature. 56. Further, it is evident by taking into consideration the provision of Section 19 (1), 45 (1), 45 (2), the conditions which is required to be considered while granting the benefit of bail in exercise of power conferred under Section 438 or 439 of Cr.P.C., apart from the twin conditions which has been provid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ials said to have been collected by the respondent Enforcement Directorate and considering the stage of the investigation, we are of the view that it is not a fit case to grant anticipatory bail. 84. In a case of money-laundering where it involves many stages of placement , layering i.e. funds moved to other institutions to conceal origin and interrogation i.e. funds used to acquire various assets , it requires systematic and analysed investigation which would be of great advantage. As held in Anil Sharma, success in such interrogation would elude if the accused knows that he is protected by a pre-arrest bail order. Section 438 CrPC is to be invoked only in exceptional cases where the case alleged is frivolous or groundless. In the case in hand, there are allegations of laundering the proceeds of the crime. The Enforcement Directorate claims to have certain specific inputs from various sources, including overseas banks. Letter rogatory is also said to have been issued and some response have been received by the Department. Having regard to the nature of allegations and the stage of the investigation, in our view, the investigating agency has to be given sufficient freedom in the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) PMLA, the twin conditions of section 45 PMLA are not applicable to the petitioners as one of the petitioners namely Rajkumari is a woman and another petitioner namely Genda Ram is the sick person. 62. In the aforesaid context it will be profitable to discuss the first proviso to Section 45 of the PMLA, which reads as under: 45. Offences to be cognizable and non-bailable. - (1) .. Provided that a person who is under the age of sixteen years or is a woman or is sick or infirm [or is accused either on his own or along with other co-accused of money- laundering a sum of less than one crore rupees], may be released on bail, if the special court so directs: 63. From bare perusal of the aforesaid proviso, it is evident that 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 after 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. There is no doubt that the courts should be more sensitive and sympathetic towards the category of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for granting bail to the category of persons below the age of sixteen years, women, sick or infirm has been made in Section 437 Cr. P.C. and many other special enactments also, however by no stretch of imagination could such provision be construed as obligatory or mandatory in nature, otherwise all serious offences under such special Acts would be committed involving women and persons of tender age below 16 years. No doubt the courts need to be more sensitive and sympathetic towards the category of persons included in the first proviso to Section 45 and similar provisions in the other Acts, as the persons of tender age and women who are likely to be more vulnerable, may sometimes be misused by the unscrupulous elements and made scapegoats for committing such Crimes, nonetheless, the courts also should not be oblivious to the fact that nowadays the educated and well placed women in the society engage themselves in the commercial ventures and enterprises, and advertently or inadvertently engage themselves in the illegal activities. In essence, the courts should exercise the discretion judiciously using their prudence, while granting the benefit of the first proviso to Section 45 PMLA ..... X X X X Extracts X X X X X X X X Extracts X X X X
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